Common use of Western Clause in Contracts

Western. Capital shall, at its own expense, or if appropriate, the expense of the Trust, provide Golden American with at least three complete copies of all registration statements, prospectuses, statements of additional information, sales literature and other promotional materials, applications for exemptions, request for no-action letters, and any and all amendments to the foregoing, that relate to the Trust or its shares, promptly after the filing of such document with the SEC or other regulatory authorities or the submission of such document to the SEC staff whichever is applicable. Golden American or its affiliate shall, at its own expense, or if appropriate, the expense of the Trust, provide Golden American with at least three complete copies of all registration statements, prospectuses, statements of additional information, sales literature and other promotional materials, applications for exemptions, request for no-action letters, and any and all amendments to the foregoing, that relate to the Policies promptly after the filing of such document with the SEC or other regulatory authorities or the submission of such document to the SEC staff whichever is applicable. (a) Subject to the limitations of subparagraphs (b)and (c) of this Section 17 of this Agreement, Western Capital agrees to indemnify and hold harmless Golden American and each of its directors, officers, and employees and each person, if any, who controls Golden American within the meaning of Section 15 of the Securities Act (collectively, the "Indemnified Parties") against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of Western Capital) or litigation expenses (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) or settlements are related to the operation of the Trust, and: (i) arise as a result of any failure by Western Capital to provide the services and furnish the materials under the terms of this Agreement to which it is subject (including a failure to meet its responsibilities under Sections 8 and 9 of this Agreement); or (ii) arise out of or result from any material breach of any representation or warranty made by Western Capital in this Agreement or arise out of or result from any other material breach of this Agreement by Western Capital. (b) Western Capital shall not be liable under Section 15(a) of this Agreement with respect to any losses, claims, damages, liabilities, or litigation expenses to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's willful misfeasance, bad faith, or gross negligence in the performance of such Indemnified Party's duties, or by reason of such Indemnified Party's reckless disregard of obligations and duties under this Agreement or to Golden American or the Variable Accounts, whichever is applicable. (c) Western Capital shall not be liable under Section 15(a) of this Agreement with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified Western Capital in writing within a reasonable time after the summons or other first legal process giving the information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify Western Capital of any such claims (d) Subject to the limitations of subparagraphs (e) and (f) of this Section 15 of this Agreement, the Trusts agrees to indemnify and hold harmless Golden American and each of its directors, officers, and employees and each person, if any, who controls Golden American within the meaning of Section 15 of the Securities Act (collectively, the "Indemnified Parties") against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of the Trust) or litigation expenses (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) or settlements are related to the operation of the Trust, and: (i) arise as a result of any failure of the Trust to provide the services and furnish the materials under the terms of this Agreement to which it is subject (including a failure to meet its responsibilities under Sections 8 and 9 of this Agreement); or (ii) arise out of or result from any material breach of any representation or warranty made by the Trust in this Agreement or arise out of or result from any other material breach of this Agreement by the Trust. (e) The Trust shall not be liable under Section 15(d) of this Agreement with respect to any losses, claims, damages, liabilities, or litigation expenses to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's willful misfeasance, bad (f) The Trust shall not be liable under Section 15(d) of this Agreement with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified the Trust in writing within a reasonable time after the summons or other first legal process giving the information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify the Trust of any such claims shall not relieve the Trust from any liability which it may have to the Indemnified Party against whom such action is brought otherwise than on account of Section 15(d) of this Agreement. In case any action is brought against the Indemnified Parties, the Trust will be entitled to participate, at its own expense, in the defense thereof. the Trust also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action, and, after notice to such party the Trust's election to assume the dense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, Western Capital shall not be liable to such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connection with the defense thereof other than reasonable costs of investigation. (a) Subject to the limitations of subsections (b) and (c) of this Section 16 Golden American agrees to indemnify and hold harmless Western Capital and the Trust and each of its Trustees, directors, officers, and employees and each person, if any, who controls Western Capital or the Trust within the meaning of Section 15 of the Securities Act (collectively, the "Indemnified Parties") against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of Golden American) or litigation expenses (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) or settlements are related 11 to the operation of the Variable Account or Trust, and: (i) arise as a result of any failure of Golden American or any of its affiliates to provide the services and furnish the materials under the terms of this Agreement to which it is subject (including a failure to meet its responsibilities under Sections 5 and 9 of this Agreement); or (ii) arise out of or result from any material breach by Golden American or any of its affiliates of any representation or warranty made by Golden American in this Agreement by Golden American or arise out of or result from any other material breach of this Agreement by Golden American or any of its affiliates. (b) Golden American shall not be liable under Section 16 of this Agreement with respect to any losses, claims, damages, liabilities, or litigation expenses to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's willful misfeasance, bad faith, or gross negligence in the performance of such Indemnified Party's duties, or by reason of such Indemnified Party's reckless disregard of obligations and duties under this Agreement or to Western Capital or the Trust, whichever is applicable. (c) Golden American shall not be liable under Section 16 with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified Golden American in writing within a reasonable time after the summons or other first legal process giving the information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify Golden American of any such claim shall not relieve Western Capital or its affiliates from any liability which it may have to the Indemnified Party against whom such action is brought otherwise than on account of Section 16 of this Agreement. In case any action is brought against the Indemnified Parties, Golden American will be entitled to participate, at its own expense, in the defense thereof. Golden American also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action, and, after notice to such party Golden American's election to assume the dense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, Golden American shall not be liable to

Western. Capital shall, at its own expense, or if appropriate, the expense of the Trust, provide Golden American with at least three complete copies of all registration statements, prospectuses, statements of additional information, sales literature and other promotional materials, applications for exemptions, request for no-action letters, and any and all amendments to the foregoing, that relate to the Trust or its shares, promptly after the filing of such document with the SEC or other regulatory authorities or the submission of such document to the SEC staff whichever is applicable. Golden American or its affiliate shall, at its own expense, or if appropriate, the expense of the Trust, provide Golden American with at least three complete copies of all registration statements, prospectuses, statements of additional information, sales literature and other promotional materials, applications for exemptions, request for no-action letters, and any and all amendments to the foregoing, that relate to the Policies promptly after the filing of such document with the SEC or other regulatory authorities or the submission of such document to the SEC staff whichever is applicable.. 8 (a) Subject to the limitations of subparagraphs (b)and (c) of this Section 17 of this Agreement, Western Capital agrees to indemnify and hold harmless Golden American and each of its directors, officers, and employees and each person, if any, who controls Golden American within the meaning of Section 15 of the Securities Act (collectively, the "Indemnified Parties") against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of Western Capital) or litigation expenses (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) or settlements are related to the operation of the Trust, and: (i) arise as a result of any failure by Western Capital to provide the services and furnish the materials under the terms of this Agreement to which it is subject (including a failure to meet its responsibilities under Sections 8 and 9 of this Agreement); or (ii) arise out of or result from any material breach of any representation or warranty made by Western Capital in this Agreement or arise out of or result from any other material breach of this Agreement by Western Capital. (b) Western Capital shall not be liable under Section 15(a) of this Agreement with respect to any losses, claims, damages, liabilities, or litigation expenses to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's willful misfeasance, bad faith, or gross negligence in the performance of such Indemnified Party's duties, or by reason of such Indemnified Party's reckless disregard of obligations and duties under this Agreement or to Golden American or the Variable Accounts, whichever is applicable. (c) Western Capital shall not be liable under Section 15(a) of this Agreement with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified Western Capital in writing within a reasonable time after the summons or other first legal process giving the information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify Western Capital of any such claimsclaims 9 shall not relieve Western Capital from any liability which it may have to the Indemnified Party against whom such action is brought otherwise than on account of Section 15(a) of this Agreement. In case any action is brought against the Indemnified Parties, Western Capital will be entitled to participate, at its own expense, in the defense thereof. Western Capital also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action, and, after notice to such party Western Capital's election to assume the defense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, Western Capital shall not be liable to such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connection with the defense thereof other than reasonable costs of investigation. (d) Subject to the limitations of subparagraphs (e) and (f) of this Section 15 of this Agreement, the Trusts agrees to indemnify and hold harmless Golden American and each of its directors, officers, and employees and each person, if any, who controls Golden American within the meaning of Section 15 of the Securities Act (collectively, the "Indemnified Parties") against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of the Trust) or litigation expenses (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) or settlements are related to the operation of the Trust, and: (i) arise as a result of any failure of the Trust to provide the services and furnish the materials under the terms of this Agreement to which it is subject (including a failure to meet its responsibilities under Sections 8 and 9 of this Agreement); or (ii) arise out of or result from any material breach of any representation or warranty made by the Trust in this Agreement or arise out of or result from any other material breach of this Agreement by the Trust. (e) The Trust shall not be liable under Section 15(d) of this Agreement with respect to any losses, claims, damages, liabilities, or litigation expenses to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's willful misfeasance, badbad 10 faith, or gross negligence in the performance of such Indemnified Party's duties, or by reason of such Indemnified Party's reckless disregard of obligations and duties under this Agreement or to Golden American or the Variable Accounts, whichever is applicable. (f) The Trust shall not be liable under Section 15(d) of this Agreement with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified the Trust in writing within a reasonable time after the summons or other first legal process giving the information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify the Trust of any such claims shall not relieve the Trust from any liability which it may have to the Indemnified Party against whom such action is brought otherwise than on account of Section 15(d) of this Agreement. In case any action is brought against the Indemnified Parties, the Trust will be entitled to participate, at its own expense, in the defense thereof. the Trust also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action, and, after notice to such party the Trust's election to assume the dense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, Western Capital shall not be liable to such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connection with the defense thereof other than reasonable costs of investigation. (a) Subject to the limitations of subsections (b) and (c) of this Section 16 Golden American agrees to indemnify and hold harmless Western Capital and the Trust and each of its Trustees, directors, officers, and employees and each person, if any, who controls Western Capital or the Trust within the meaning of Section 15 of the Securities Act (collectively, the "Indemnified Parties") against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of Golden American) or litigation expenses (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) or settlements are related 11 to the operation of the Variable Account or Trust, and: (i) arise as a result of any failure of Golden American or any of its affiliates to provide the services and furnish the materials under the terms of this Agreement to which it is subject (including a failure to meet its responsibilities under Sections 5 and 9 of this Agreement); or (ii) arise out of or result from any material breach by Golden American or any of its affiliates of any representation or warranty made by Golden American in this Agreement by Golden American or arise out of or result from any other material breach of this Agreement by Golden American or any of its affiliates. (b) Golden American shall not be liable under Section 16 of this Agreement with respect to any losses, claims, damages, liabilities, or litigation expenses to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's willful misfeasance, bad faith, or gross negligence in the performance of such Indemnified Party's duties, or by reason of such Indemnified Party's reckless disregard of obligations and duties under this Agreement or to Western Capital or the Trust, whichever is applicable. (c) Golden American shall not be liable under Section 16 with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified Golden American in writing within a reasonable time after the summons or other first legal process giving the information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify Golden American of any such claim shall not relieve Western Capital or its affiliates from any liability which it may have to the Indemnified Party against whom such action is brought otherwise than on account of Section 16 of this Agreement. In case any action is brought against the Indemnified Parties, Golden American will be entitled to participate, at its own expense, in the defense thereof. Golden American also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action, and, after notice to such party Golden American's election to assume the dense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, Golden American shall not be liable toto 12 such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connection with the defense thereof other than reasonable costs of investigation.

Western. Capital shall, at its own expenseexpense or, or if appropriate, the expense of the Trust, provide Golden American with at least three complete copies of all registration statements, prospectuses, statements of additional information, sales literature and other promotional materials, applications for exemptions, request requests for no-no- action letters, and any and all amendments to the foregoing, that relate to the Trust or its shares, promptly after the filing of such document with the SEC or other regulatory authorities or the submission of such document to the SEC staff staff, whichever is applicable. Golden American or its affiliate shall, at its own expense, or if appropriate, the expense of the Trust, provide Golden American Western Capital with at least three complete copies of all registration statements, prospectuses, statements of additional information, sales literature and other promotional materials, applications for exemptions, request requests for no-action letters, and any and all amendments to the foregoing, that relate to the Policies Policies, promptly after the filing of such document with the SEC or other regulatory authorities or the submission of such document to the SEC staff staff, whichever is applicable. (a) a. Subject to the limitations of subparagraphs (b)and b) and (c) of this Section 17 of this Agreement, Western Capital agrees to indemnify and hold harmless Golden American and each of its directors, officers, and employees and each person, if any, any who controls Golden American within the meaning of Section 15 of the Securities Act (collectively, the "Indemnified Parties") against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of Western Capital) or litigation expenses (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) or settlements are related to the operation of the Trust, and: (i) arise as a result of any failure by Western Capital to provide the services and furnish the materials under the terms of this Agreement to which it is subject (including a failure to meet its responsibilities under Sections 8 and 9 of this Agreement); or (ii) arise out of or result from any material breach of any representation or warranty made by Western Capital in this Agreement or arise out of or result from any other material breach of this Agreement by Western Capital. (b) b. Western Capital shall not be liable under Section 15(a) of this Agreement with respect to any losses, claims, damages, liabilities, or litigation expenses to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's willful misfeasance, bad faith, or gross negligence in the performance of such Indemnified Party's duties, or by reason of such Indemnified Party's reckless disregard of to obligations and duties under this Agreement or to Golden American or the Variable Accounts, whichever is applicable. (c) Western Capital shall not be liable under Section 15(a) of this Agreement with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified Western Capital in writing within a reasonable time after the summons or other first legal process giving the information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify Western Capital of any such claims (d) Subject to the limitations of subparagraphs (e) and (f) of this Section 15 of this Agreement, the Trusts agrees to indemnify and hold harmless Golden American and each of its directors, officers, and employees and each person, if any, who controls Golden American within the meaning of Section 15 of the Securities Act (collectively, the "Indemnified Parties") against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of the Trust) or litigation expenses (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) or settlements are related to the operation of the Trust, and: (i) arise as a result of any failure of the Trust to provide the services and furnish the materials under the terms of this Agreement to which it is subject (including a failure to meet its responsibilities under Sections 8 and 9 of this Agreement); or (ii) arise out of or result from any material breach of any representation or warranty made by the Trust in this Agreement or arise out of or result from any other material breach of this Agreement by the Trust. (e) The Trust shall not be liable under Section 15(d) of this Agreement with respect to any losses, claims, damages, liabilities, or litigation expenses to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's willful misfeasance, bad (f) The Trust shall not be liable under Section 15(d) of this Agreement with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified the Trust in writing within a reasonable time after the summons or other first legal process giving the information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify the Trust of any such claims shall not relieve the Trust from any liability which it may have to the Indemnified Party against whom such action is brought otherwise than on account of Section 15(d) of this Agreement. In case any action is brought against the Indemnified Parties, the Trust will be entitled to participate, at its own expense, in the defense thereof. the Trust also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action, and, after notice to such party the Trust's election to assume the dense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, Western Capital shall not be liable to such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connection with the defense thereof other than reasonable costs of investigation. (a) Subject to the limitations of subsections (b) and (c) of this Section 16 Golden American agrees to indemnify and hold harmless Western Capital and the Trust and each of its Trustees, directors, officers, and employees and each person, if any, who controls Western Capital or the Trust within the meaning of Section 15 of the Securities Act (collectively, the "Indemnified Parties") against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of Golden American) or litigation expenses (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) or settlements are related 11 to the operation of the Variable Account or Trust, and: (i) arise as a result of any failure of Golden American or any of its affiliates to provide the services and furnish the materials under the terms of this Agreement to which it is subject (including a failure to meet its responsibilities under Sections 5 and 9 of this Agreement); or (ii) arise out of or result from any material breach by Golden American or any of its affiliates of any representation or warranty made by Golden American in this Agreement by Golden American or arise out of or result from any other material breach of this Agreement by Golden American or any of its affiliates. (b) Golden American shall not be liable under Section 16 of this Agreement with respect to any losses, claims, damages, liabilities, or litigation expenses to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's willful misfeasance, bad faith, or gross negligence in the performance of such Indemnified Party's duties, or by reason of such Indemnified Party's reckless disregard of obligations and duties under this Agreement or to Western Capital or the Trust, whichever is applicable. (c) Golden American shall not be liable under Section 16 with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified Golden American in writing within a reasonable time after the summons or other first legal process giving the information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify Golden American of any such claim shall not relieve Western Capital or its affiliates from any liability which it may have to the Indemnified Party against whom such action is brought otherwise than on account of Section 16 of this Agreement. In case any action is brought against the Indemnified Parties, Golden American will be entitled to participate, at its own expense, in the defense thereof. Golden American also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action, and, after notice to such party Golden American's election to assume the dense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, Golden American shall not be liable to

Western. Capital shall, at its own expense, or if appropriate, the expense of the Trust, provide Golden American with at least three complete copies of all registration statements, prospectuses, statements of additional information, sales literature and other promotional materials, applications for exemptions, request for no-action letters, and any and all amendments to the foregoing, that relate to the Trust or its shares, promptly after the filing of such document with the SEC or other regulatory authorities or the submission of such document to the SEC staff whichever is applicable. Golden American or its affiliate shall, at its own expense, or if appropriate, the expense of the Trust, provide Golden American with at least three complete copies of all registration statements, prospectuses, statements of additional information, sales literature and other promotional materials, applications for exemptions, request for no-action letters, and any and all amendments to the foregoing, that relate to the Policies promptly after the filing of such document with the SEC or other regulatory authorities or the submission of such document to the SEC staff whichever is applicable. (a) Subject to the limitations of subparagraphs (b)and (c) of this Section 17 of this Agreement, Western Capital agrees to indemnify and hold harmless Golden American and each of its directors, officers, and employees and each person, if any, who controls Golden American within the meaning of Section 15 of the Securities Act (collectively, the "Indemnified Parties") against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of Western Capital) or litigation expenses (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) or settlements are related to the operation of the Trust, and: (i) arise as a result of any failure by Western Capital to provide the services and furnish the materials under the terms of this Agreement to which it is subject (including a failure to meet its responsibilities under Sections 8 and 9 of this Agreement); or (ii) arise out of or result from any material breach of any representation or warranty made by Western Capital in this Agreement or arise out of or result from any other material breach of this Agreement by Western Capital. (b) Western Capital shall not be liable under Section 15(a) of this Agreement with respect to any losses, claims, damages, liabilities, or litigation expenses to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's willful misfeasance, bad faith, or gross negligence in the performance of such Indemnified Party's duties, or by reason of such Indemnified Party's reckless disregard of obligations and duties under this Agreement or to Golden American or the Variable Accounts, whichever is applicable. (c) Western Capital shall not be liable under Section 15(a) of this Agreement with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified Western Capital in writing within a reasonable time after the summons or other first legal process giving the information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify Western Capital of any such claimsclaims shall not relieve Western Capital from any liability which it may have to the Indemnified Party against whom such action is brought otherwise than on account of Section 15(a) of this Agreement. In case any action is brought against the Indemnified Parties, Western Capital will be entitled to participate, at its own expense, in the defense thereof. Western Capital also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action, and, after notice to such party Western Capital's election to assume the defense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, Western Capital shall not be liable to such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connection with the defense thereof other than reasonable costs of investigation. (d) Subject to the limitations of subparagraphs (e) and (f) of this Section 15 of this Agreement, the Trusts agrees to indemnify and hold harmless Golden American and each of its directors, officers, and employees and each person, if any, who controls Golden American within the meaning of Section 15 of the Securities Act (collectively, the "Indemnified Parties") against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of the Trust) or litigation expenses (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) or settlements are related to the operation of the Trust, and: (i) arise as a result of any failure of the Trust to provide the services and furnish the materials under the terms of this Agreement to which it is subject (including a failure to meet its responsibilities under Sections 8 and 9 of this Agreement); or (ii) arise out of or result from any material breach of any representation or warranty made by the Trust in this Agreement or arise out of or result from any other material breach of this Agreement by the Trust. (e) The Trust shall not be liable under Section 15(d) of this Agreement with respect to any losses, claims, damages, liabilities, or litigation expenses to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's willful misfeasance, badbad faith, or gross negligence in the performance of such Indemnified Party's duties, or by reason of such Indemnified Party's reckless disregard of obligations and duties under this Agreement or to Golden American or the Variable Accounts, whichever is applicable. (f) The Trust shall not be liable under Section 15(d) of this Agreement with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified the Trust in writing within a reasonable time after the summons or other first legal process giving the information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify the Trust of any such claims shall not relieve the Trust from any liability which it may have to the Indemnified Party against whom such action is brought otherwise than on account of Section 15(d) of this Agreement. In case any action is brought against the Indemnified Parties, the Trust will be entitled to participate, at its own expense, in the defense thereof. the Trust also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action, and, after notice to such party the Trust's election to assume the dense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, Western Capital shall not be liable to such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connection with the defense thereof other than reasonable costs of investigation. (a) Subject to the limitations of subsections (b) and (c) of this Section 16 Golden American agrees to indemnify and hold harmless Western Capital and the Trust and each of its Trustees, directors, officers, and employees and each person, if any, who controls Western Capital or the Trust within the meaning of Section 15 of the Securities Act (collectively, the "Indemnified Parties") against any and all losses, claims, damages, liabilities (including amounts paid in settlement with the written consent of Golden American) or litigation expenses (including legal and other expenses) to which the Indemnified Parties may become subject under any statute, at common law or otherwise, insofar as such losses, claims, damages, liabilities, or expenses (or actions in respect thereof) or settlements are related 11 to the operation of the Variable Account or Trust, and: (i) arise as a result of any failure of Golden American or any of its affiliates to provide the services and furnish the materials under the terms of this Agreement to which it is subject (including a failure to meet its responsibilities under Sections 5 and 9 of this Agreement); or (ii) arise out of or result from any material breach by Golden American or any of its affiliates of any representation or warranty made by Golden American in this Agreement by Golden American or arise out of or result from any other material breach of this Agreement by Golden American or any of its affiliates. (b) Golden American shall not be liable under Section 16 of this Agreement with respect to any losses, claims, damages, liabilities, or litigation expenses to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's willful misfeasance, bad faith, or gross negligence in the performance of such Indemnified Party's duties, or by reason of such Indemnified Party's reckless disregard of obligations and duties under this Agreement or to Western Capital or the Trust, whichever is applicable. (c) Golden American shall not be liable under Section 16 with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified Golden American in writing within a reasonable time after the summons or other first legal process giving the information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify Golden American of any such claim shall not relieve Western Capital or its affiliates from any liability which it may have to the Indemnified Party against whom such action is brought otherwise than on account of Section 16 of this Agreement. In case any action is brought against the Indemnified Parties, Golden American will be entitled to participate, at its own expense, in the defense thereof. Golden American also shall be entitled to assume the defense thereof, with counsel satisfactory to the party named in the action, and, after notice to such party Golden American's election to assume the dense thereof, the Indemnified Party shall bear the fees and expenses of any additional counsel retained by it, Golden American shall not be liable toto such party under this Agreement for any legal or other expenses subsequently incurred by such party independently in connection with the defense thereof other than reasonable costs of investigation.