Exhibit 10.1

 

 

 

**SECOND        AMENDMENT TO SERVICE AGREEMENT**

 

This is        the Second Amendment (this “Amendment”) to the Service Agreement between ING        USA Annuity and Life Insurance Company (formerly, Golden American Life Insurance Company)        (“ING USA”) and Directed Services LLC (formerly, Directed Services, Inc.)        (“DSL”). This Amendment, executed on August 9, 2007, is effective as of July        31, 2007.

 

1.         Background. ING USA and DSL are parties to a        Service Agreement, dated March 7, 1995 (the “Base Agreement”) pursuant to        which ING USA and DSL provide each other with certain services more particularly described        in Section 2 of the Base Agreement. ING USA and DSL executed a first amendment, effective        March 7, 1995, to the Base Agreement (the “First Amendment”) pursuant to which        the parties (i) clarified certain services to be provided by DSL; and (ii) added expense        examples to Section 3 of the Base Agreement to clarify equitable expense determinations.        The Base Agreement, together with the First Amendment is hereinafter referred to as the        “Agreement”. ING USA and DSL wish to amend (i) Section 3(c) of the Agreement        relating to compensation payable to ING USA for managerial and supervisory services; and        (ii) Section 11 of the Agreement to provide for the laws of Iowa as the governing law of        the Agreement. Capitalized terms not defined in this Amendment shall have the meaning        ascribed to them in the Agreement.

 

2.         Amendment to Section 3 of the Agreement.Section 3 is amended by the deletion of subparagraph (c) and the insertion        of the following provision as subparagraph (c) thereof;

 

“(c) Expenses for managerial and supervisory services – DSL        shall pay to ING USA on a monthly basis in arrears, an amount equal to the product of the        Monthly Rate (as hereinafter defined) times the Monthly AUM (as hereinafter defined).        Monthly Rate shall mean for any month, the amount derived by dividing total average assets        ING Investors Trust for such month by the net income earned by ING Investors Trust for such        month. Monthly AUM shall mean for any month, that portion of the total average assets of        ING Investors Trust for such month that is attributable to ING USA        deposits.”

 

3.         Amendment to Section 11 of the Agreement.Section 11 is deleted and the following provision is inserted in lieu        thereof:

 

|   | “11. Governing Law. |
|--------|---------------------------|

This Agreement is made pursuant to, and shall be governed by, interpreted        under, and the rights of the parties determined in accordance with, the laws of the State        of Iowa.”

 

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4.         Amended Agreement.Except as specifically        amended by this Amendment, each and every term of the Agreement remains in full force and        effect.

 

5.         Counterparts.This Amendment may be executed in        separate counterparts, each of which shall be deemed an original, but all of which shall        constitute one and the same instrument.

 

IN        WITNESS WHEREOF, the parties have caused this Amendment to be duly executed on August 9,        2007.

 

**ING USA        Annuity and Life Insurance Company**

 

| By:/s/ Alice W. Su |
|--------------------|

|   |      Alice W. Su |
|--------|-------------------------------------------|

|   |      Vice President and Actuary |
|--------|----------------------------------------------------------|

 

 

**Directed        Services LLC**

 

| By:/s/ Alyce L.                        Shaw |
|---------------------------------------------|

|   |      Alyce L. Shaw |
|--------|---------------------------------------------|

|   |      Vice President |
|--------|----------------------------------------------|

 

 

 

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