EX-99.B(h)(5)(x)
PARTICIPATION AGREEMENT
By and Among
XXXXX FARGO VARIABLE TRUST
And
GOLDEN AMERICAN LIFE INSURANCE COMPANY
And
XXXXXXXX INC.
THIS AGREEMENT, made and entered into this 10th day of November, 2003, by
and among Golden American Life Insurance Company, a Delaware corporation (the
"Company"), on its own behalf and on behalf of each separate account of the
Company named in Exhibit A to this Agreement, as may be amended from time to
time (each separate account, a "Separate Account"), and Xxxxx Fargo Variable
Trust, an open-end diversified management investment company organized under the
laws of the State of Delaware (the "Trust"), and Xxxxxxxx Inc., an Arkansas
corporation (the "Underwriter").
WHEREAS, the Trust engages in business as an open-end diversified,
management investment company and was established for the purpose of serving as
the investment vehicle for separate accounts established for variable life
insurance contracts and variable annuity contracts to be offered by insurance
companies which have entered into participation agreements substantially similar
to this Agreement ("Participating Insurance Companies"); and
WHEREAS, beneficial interests in the Trust are divided into several series
of shares, each representing the interest in a particular managed portfolio of
securities and other assets (each, a "Fund"); and
WHEREAS, an order from the U.S. Securities and Exchange Commission (the
"SEC" or "Commission"), dated September 28, 1998 (File No. 812-11158), grants
Participating Insurance Companies and variable annuity separate accounts and
variable life insurance separate accounts relief from the provisions of Sections
9(a), 13(a), 15(a) and 15(b) of the Investment Company Act of 1940, as amended
(the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the
extent necessary to permit shares of the Trust to be sold to and held by
variable annuity separate accounts and variable life insurance separate accounts
of both affiliated and unaffiliated
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Participating Insurance Companies and qualified pension and retirement plans
("Mixed and Shared Funding Order"), and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable
annuity and variable life insurance contracts under the 1933 Act and named in
Exhibit A to this Agreement, as it may be amended from time to time (the
"Contracts"); and
WHEREAS, the Separate Accounts are duly organized, validly existing
segregated asset accounts, established by resolution of the Board of Directors
of the Company under the insurance laws of the State of Delaware, to set aside
and invest assets attributable to the Contracts; and
WHEREAS, the Company has registered the Separate Accounts as unit
investment trusts under the 1940 Act; and
WHEREAS, the Underwriter is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended (hereinafter the "1934
Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (hereinafter "NASD");
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds named in
Exhibit B on behalf of the Separate Accounts to fund the Contracts, and the
Underwriter is authorized to sell such shares to unit investment trusts such as
the Separate Accounts at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Trust, and the Underwriter agree as follows:
ARTICLE I Sale of Trust Shares
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1.1 The Underwriter agrees to sell to the Company those shares of the Trust
which the Company orders on behalf of the Separate Accounts, executing
such orders on a daily basis at the net asset value next computed after
receipt and acceptance by the Trust or its designee of the order for the
shares of the Trust. For purposes of this Section 1.1, the
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Company shall be the designee of the Trust for receipt of such orders from
each Separate Account and receipt by such designee shall constitute
receipt by the Trust; provided that (1) the Company's orders for Trust
shares on any day are based exclusively on orders from owners of Contracts
received by the Company before 4:00 pm Eastern Time on that day, and (2)
the Trust receives notice of such order from the Company by 9:00 am
Eastern Time on the next following Business Day. "Business Day" shall mean
any day on which the New York Stock Exchange is open for trading and on
which the relevant Fund calculates its net asset value.
1.2 The Trust agrees to make its shares available indefinitely for purchase at
the applicable net asset value per share by Participating Insurance
Companies and their separate accounts on those days on which the Trust
calculates its net asset value pursuant to rules of the SEC; provided,
however, that the Board of Trustees of the Trust (hereinafter the
"Trustees") may refuse to sell shares of any Fund to any person, or
suspend or terminate the offering of shares of any Fund, if such action is
required by law or by regulatory authorities having jurisdiction, or is,
in the sole discretion of the Trustees, acting in good faith and in light
of their fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of any Fund. For
purposes of this Section 1.2, the Trust's policy, as amended from time to
time, regarding "market timing" (as defined in such policy) shall be
enforced by the Company and that disclosure of the substance of the policy
shall be made by the Company in the prospectuses for the Contracts.
1.3 The Trust and the Underwriter agree that shares of the Trust will be sold
only to Participating Insurance Companies and their separate accounts, and
to qualified pension and retirement plans. No shares of the Trust will be
sold to the general public.
1.4 The Trust and the Underwriter will not sell Trust shares to any insurance
company or separate account unless an agreement containing provisions
substantially the same as Articles I, III, V, VII, and Section 2.7 of
Article II of this Agreement are in effect to govern such sales.
1.5 The Trust will not accept a purchase order from qualified pension or
retirement plan if such purchase would make the plan shareholder an owner
of 10 percent or more of the assets of a Fund unless such plan executes an
agreement with the Trust governing
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participation in such Fund that includes the conditions set forth herein
to the extent applicable. A qualified pension or retirement plan will
execute an application containing an acknowledgment of this condition at
the time of its initial purchase of shares of any Fund.
1.6 The Trust agrees to redeem for cash, upon the Company's request, any full
or fractional shares of the Trust held by the Company, executing such
requests on a daily basis at the net asset value next computed after
receipt and acceptance by the Trust or its designee of the request for
redemption. For purposes of this Section 1.6, the Company shall be the
designee of the Trust for receipt of requests for redemption from each
Separate Account and receipt by such designee shall constitute receipt by
the Trust; provided that (1) the Company's orders for redemption of Trust
shares on any day are based exclusively on orders from owners of Contracts
received by the Company before 4:00 pm Eastern Time on that day, and (2)
the Trust receives notice of such order from the Company by 9:00 am
Eastern Time on the next following Business Day. Payment shall be in
federal funds transmitted by wire to the Company's account as designated
by the Company in writing from time to time.
1.7 Each purchase, redemption, and exchange order placed by the Company shall
be placed separately for each Fund and shall not be netted with respect to
any Fund. However, with respect to payment of the purchase price by the
Company and of redemption proceeds by the Trust, the Company and the Trust
shall net purchase and redemption orders with respect to each Fund and
shall transmit one net payment for all Funds in accordance with Section
1.8.
1.8 The Company agrees that purchases and redemptions of Fund shares offered
by the then current prospectus of the Fund shall be made in accordance
with the provisions of such prospectus. The Company agrees that all net
amounts received under the variable annuity contracts which are listed on
Exhibit A attached hereto and incorporated herein by this reference, as
such Exhibit A may be amended from time to time hereafter by mutual
written agreement of all the parties hereto (the "Contracts") shall be
invested in the Funds, in such other Funds managed by Xxxxx Fargo Funds
Management, LLC, as may be mutually agreed to in writing by the parties
hereto, or in the Company's general account or market value fixed account,
provided that such amounts may also be invested
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in an investment company other than the Trust if (a) such other investment
company, or series thereof, has investment objectives or policies that are
substantially different from the investment objectives and policies of all
the Funds of the Trust which are actually used by the Company to fund the
Contracts; or (b) the Company gives the Fund and the Underwriter 45 days
written notice of its intention to make such other investment company
available as a funding vehicle for the Contacts; or (c) such other
investment company was available as a funding vehicle for the Contracts
prior to the date of this Agreement and the Company so informs the Fund
and Underwriter prior to their signing this Agreement (a list of such
funds appearing on Exhibit B to this Agreement); or (d) the Fund or
Underwriter consents to the use of such other investment company.
1.9 In the event of net purchases, the Company shall pay for shares by 2:00
p.m. Eastern Time on the next Business Day after an order to purchase the
Shares is deemed to be received in accordance with the provisions of
Section 1.1 hereof. In the event of net redemptions, the Trust shall pay
the redemption proceeds in accordance with the terms of the then-current
prospectus for the Trust. All such payments shall be in federal funds
transmitted by wire. For purposes of Section 2.4 and Section 2.10, upon
receipt by the Trust of the federal funds so wired, such funds shall cease
to be the responsibility of the Company and shall become the
responsibility of the Fund.
1.10 Issuance and transfer of the Trust's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Separate
Account. Purchase and redemption orders for Trust shares will be recorded
in an appropriate title for each Separate Account or the appropriate title
for each Separate Account or the appropriate subaccount of each Separate
Account.
1.11 The Trust shall furnish notice as soon as reasonably practicable to the
Company of any income, dividends, or capital gain distributions payable on
the Trust's shares. The Company hereby elects to receive all such
dividends and distributions as are payable on the Fund shares in the form
of additional shares of that Fund. The Company reserves the right to
revoke this election and to receive all such dividends and distributions
in cash. The Trust shall notify the Company of the number of shares so
issued as payment of such dividends and distributions.
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1.12 The Trust shall make the net asset value per share for each Fund available
to the Company on a daily basis as soon as reasonably practical after the
net asset value per share is calculated and shall use its best efforts to
make such net asset value per share available by 3:30 p.m. Pacific Time,
each business day.
ARTICLE II Representations and Warranties
------------------------------
2.1 The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act, unless exempt therefrom, and that the
Contracts will be issued and sold in compliance with all applicable
federal and state laws and that the sale of the Contracts shall comply in
all material respects with state insurance requirements. The Company
further represents and warrants that: (a) it is an insurance company duly
organized and in good standing under applicable law; (b) it has legally
and validly established each Separate Account as a segregated asset
account under applicable state law and has registered each Separate
Account as a unit investment trust in accordance with the provisions of
the 1940 Act, unless exempt therefrom, to serve as segregated investment
accounts for the Contracts; and (c) it will maintain such registration, if
required, for so long as any Contracts are outstanding. The Company shall
amend any registration statement under the 1933 Act for the Contracts and
any registration statement under the 1940 Act for the Separate Accounts
from time to time as required in order to effect the continuous offering
of the Contracts or as may otherwise be required by applicable law. The
Company shall register and qualify the Contracts for sale in accordance
with the securities laws of the various states only if, and to the extent,
deemed necessary by the Company.
2.2 Subject to Article VI hereof, the Company represents that: (a) the
Contracts are currently and at the time of issuance will be treated as
life insurance, endowment, or annuity contracts under applicable
provisions of the Internal Revenue Code, (b) for so long as the Separate
Accounts hold shares of the Trust the Company will maintain such
treatment, (c) no Fund will fail to be eligible for "look-through"
treatment under Treasury Regulation 1.817-5(f) by reason of a current or
future failure of the Company, the Separate Accounts or the Contracts to
comply with any applicable requirements of the Code or Treasury
Regulations, (d) the Company will notify the Trust and the Underwriter
immediately upon having any basis for believing that the Contracts will
not be treated as
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life insurance, endowment, or annuity contracts under applicable
provisions of the Code, (e) the Company will notify the Trust and the
Underwriter immediately upon having any basis for believing that the
failure of the Company, the Separate Accounts or the Contracts to comply
with any applicable requirements of the Code or Treasury Regulations will
render a Fund ineligible, or jeopardize a Fund's eligibility, for
"look-through" treatment under Treasury Regulation 1.817 -5(f), (f) the
Company will take all necessary steps to cure any such failure, including,
if necessary, obtaining a waiver or closing agreement with respect to such
failure from the U.S. Internal Revenue Service at the Company's expense.
2.3 The Company represents and warrants that all of its directors, officers,
employees, investment advisors, and other individuals/entities dealing
with the money and/or securities of the Trust are covered by a blanket
fidelity bond or similar coverage in an amount not less than $5 million.
The aforesaid includes coverage for larceny and embezzlement and is issue
by a reputable bonding company. The Company agrees that any amounts
received under such bond in connection with claims that derive from
arrangements described in this Agreement will be held by the Company for
the benefit of the Trust. The Company agrees to see that this bond or
another bond containing these provisions is always in effect, and agrees
to notify the Trust and the Underwriter in the event that such coverage no
longer applies.
2.4 The Trust represents and warrants that Trust shares sold pursuant to this
Agreement shall be registered under the 1933 Act and duly authorized for
issuance in accordance with applicable law, and that the Trust is and
shall remain registered under the 1950 Act for as long as the Trust shares
are sold. The Trust shall amend the registration statement for its shares
under the 1933 and the 1940 Acts from time to time as required in order to
effect the continuous offering of its shares. The Trust shall register and
qualify the shares for sale in accordance with the laws of the various
states only if, and to the extent, deemed advisable by the Trust or the
Underwriter.
2.5 The Trust and the Underwriter represent and warrant that each Portfolio of
the Trust in which the Account invests will meet the diversification
requirements of Section 817(h) of the Code and the regulations thereunder,
relating to the diversification requirements for variable annuity,
endowment, or life insurance contracts, as they may be amended from
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time to time (and any revenue rulings, revenue procedures, notices and
other published announcements of the Internal Revenue Service interpreting
these sections), as if those requirements applied directly to each such
Portfolio. The Trust and the Underwriter represent that each Portfolio
will elect to be qualified as a Regulated Investment Company under
Subchapter M of the Code and that they will maintain such qualification
under Subchapter M or any successor or similar provision. The Trust and
the Underwriter further represent that no shares of the Trust will be sold
directly to the general public. Should the Trust or the Underwriter become
aware of a failure of the Trust, or any of its Portfolios, to be in
compliance with Subchapter M of the Code or Section 817(h) of the Code and
regulations thereunder, they represent and agree that they will
immediately notify the Company of such in writing.
2.6 The Trust makes no representations as to whether any aspect of its
operations, including but not limited to, investment policies, fees and
expenses, complies with the insurance and other applicable laws of the
various states, except that the Trust represents that it is and shall at
all times remain in compliance with the laws of the state of Delaware to
the extent required to perform this Agreement.
2.7 The Trust represents and warrants that to the extent that it decides to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act,
the Trust undertakes to have its Board of Trustees, a majority of whom are
not interested persons of the Trust, formulate and approve any plan under
Rule 12b-1 ("Rule 12b-1 Plan") to finance distribution expenses. The Trust
shall notify the Company immediately upon determining to finance
distribution expenses pursuant to Rule 12b-1.
2.8 The Trust represents that it is lawfully organized and validly existing
under the laws of Delaware and that it does and will comply with
applicable provisions of the 0000 Xxx.
2.9 The Trust represents and warrants that it and all of its trustees,
officers, employees and other individuals/entities having access to the
funds and/or securities of the Trust are and continue to be at all times
covered by a blanket fidelity bond or similar coverage for the benefit of
the Trust in an amount not less than the minimal coverage as required
currently by Rule 17g-1 of the 1940 Act or related provisions as may be
promulgated from time to time. The aforesaid bond includes coverage for
larceny and embezzlement and is issued by a reputable bonding company.
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2.10 The Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC.
The Underwriter further represents that it will sell and distribute the
Trust's shares in accordance with all applicable federal and state
securities laws, including without limitation the 1933 Act, the 1934 Act,
and the 0000 Xxx.
2.11 The Underwriter represents and warrants that the Trust's investment
manager, Xxxxx Fargo Funds Management, LLC, is registered as an investment
adviser pursuant to the Investment Advisers Act of 1940 and that the
investment manager will perform its obligations to the Trust in accordance
with any applicable state and federal securities laws.
ARTICLE III Prospectuses and Proxy Statements; Voting
-----------------------------------------
3.1 The Underwriter shall provide the Company, at the Company's expense, with
as many copies of the Trust's current prospectus as the Company may
reasonably request. If requested by the Company in lieu thereof, the Trust
shall provide such documentation including a final copy of a current
prospectus set in type at the Trust's expense and other assistance as is
reasonably necessary in order for the Company at least annually (or more
frequently if the Trust's prospectus is amended more frequently) to have
the new prospectus for the Contracts and the Trust's new prospectus
printed together in one document; in such case at the Company's expense.
3.2 The Trust's prospectus shall state that the statement of additional
information for the Trust is available from the Underwriter (or, in the
Trust's discretion, the Prospectus shall state that such statement is
available from the Trust).
3.3 The Trust, at its expense, shall provide the Company with copies of its
proxy material, if any, reports to shareholders and other communications
to shareholders in such quantity as the Company shall reasonably require
and the Company shall bear the costs of distributing them to existing
Contract owners or participants.
3.4 The Trust hereby notifies the Company that it is appropriate to include in
the prospectuses pursuant to which the Contracts are offered disclosure
regarding the potential risks of mixed and shared funding.
3.5 To the extent required by law the Company shall:
(1) solicit voting instructions from Contract owners or participants;
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(2) vote the Trust shares held in each Separate Account in accordance
with instructions received from Contract owners or participants;
and
(3) vote Trust shares held in each Separate Account for which no
timely instructions have been received, in the same proportion as
Trust shares of such Fund for which instructions have been
received from the Company's Contract owners or participants;
for so long as and to the extent that the 1940 Act requires pass-through
voting privileges for variable contract owners. The Company reserves the
right to vote Trust shares held in any segregated asset account in its own
right, to the extent permitted by law. Participating Insurance Companies
shall be responsible for assuring that each of their separate accounts
participating in the Trust calculates voting privileges in a manner
consistent with other Participating Insurance Companies and as required by
the Mixed and Shared Funding Order. The Trust will notify the Company of
any changes of interpretation or amendment to the Mixed and Shared Funding
Order.
3.6 The Trust will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular, the Trust will either provide for
annual meetings (except to the extent that the Commission may interpret
Section 16 of the 1940 Act not to require such meetings) or comply with
Section 16(c) of the 1940 Act (although the Trust is not one of the trusts
described in Section 16(c) of the Act) as well as with Sections 16(a) and,
if and when applicable, 16(b) of the 1940 Act. Further, the Trust will act
in accordance with the Commission's interpretation of the requirements of
Section 16(a) with respect to periodic elections of Trustees and with
whatever rules the Commission may promulgate with respect thereto.
ARTICLE IV Sales Material and Information
------------------------------
4.1 The Company shall furnish, or shall cause to be furnished, to the Trust or
the Underwriter, each piece of sales literature or other promotional
materials in which the Trust or the Trust's investment manager,
sub-advisers or Underwriter is named, at least five business days prior to
its use. No such material shall be used if the Trust or the Underwriter
reasonably objects in writing to such use within five business days after
receipt of such material.
4.2 The Company represents and agrees it will use best efforts to ensure that
sales literature for the Contracts prepared by the Company or its
affiliates will be consistent with every law, rule, and regulation of any
regulatory agency or self-regulatory agency that applies
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to the Contracts or to the sale of the Contracts, including, but not
limited to, NASD Conduct Rule 2210 and IM-2210-2 thereunder.
4.3 The Company shall not give any information or make any representations or
statements on behalf of the Trust or concerning the Trust in connection
with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for
the Trust shares as such registration statement and prospectus may be
amended or supplemented from time to time, or in reports or proxy
statements for the Trust, or in sales literature or other promotional
material approved by the Trust or by the Underwriter, except with the
permission of the Trust or the Underwriter. The Trust and the Underwriter
agree to respond to any request for approval on a prompt and timely basis.
The Company shall adopt and implement procedures reasonably designed to
ensure that information concerning the Trust, the Underwriter, or any of
their affiliates which is intended for use by brokers or agents selling
the Contracts (i.e., information that is not intended for distribution to
Contract owners or prospective Contract owners) is so used, and neither
the Trust. The Underwriter, nor any of their affiliates shall be liable
for any losses, damages, or expenses relating to the improper use of such
broker only materials by agents of the Company or its affiliates who are
unaffiliated with the Trust or the Underwriter. The parties hereto agree
that this Section 4.3 is not intended to designate nor otherwise imply
that the Company is an underwriter or distributor of the Trust's shares.
4.4 The Trust or the Underwriter shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales literature
or other promotional material in which the Company, its Separate Account,
or the Contracts are named, at least five business days prior to its use.
No such material shall be used if the Company reasonably objects in
writing to such use within five business days after receipt of such
material.
4.5 The Trust represents and agrees that sales literature for the Trust
prepared by the Trust or its affiliates in connection with the sale of the
Contracts will be consistent with every law, rule, and Regulation of any
regulatory agency or self regulatory agency that applies to the Trust or
to the sale of Trust shares, including, but not limited to, NASD Conduct
Rule 2210 and IM-2210-2 thereunder.
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4.6 The Trust and the Underwriter shall not give any information or make any
representations on behalf of the Company or concerning the Company, each
Separate Account, or the Contracts other than the information or
representations contained in a registration statement or prospectus for
the Contracts, as such registration statement and prospectus may be
amended or supplemented from time to time, or in published reports for
each Separate Account which are in the public domain or approved by the
Company for distribution to Contract owners or participants, or in sales
literature or other promotional material approved by the Company, except
with the permission of the Company. The Company agrees to respond to any
request for approval on a prompt and timely basis. The Trust and the
Underwriter shall xxxx information produced by or on behalf of the Trust
"FOR BROKER USE ONY" which is intended for use by brokers or agents
selling the Contracts (i.e., information that is not intended for
distribution to Contract owners or prospective Contract owners) is so
used, and neither the Company nor any of its affiliates shall be liable
for any losses, damages, or expenses arising on account of the use by
brokers of such information with third parties in the event that is not so
marked.
4.7 The Trust will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the Trust
or its shares, contemporaneously with the filing of such document with the
SEC or other regulatory authorities.
4.8 The Company will provide to the Trust at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no action letters, and all amendments to any of the above,
that relate to the Contracts or each Separate Account, contemporaneously
with the filing of such document with the SEC or other regulatory
authorities. The Company shall promptly inform the Trust of the results of
any examination by the SEC (or other regulatory authorities) that relates
to the Contracts, and the Company shall provide the
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Trust with a copy of relevant portions of any "deficiency letter" or other
correspondence or written report regarding any such examination.
4.9 For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper,
magazine, or other periodical, radio, television, telephone or tape
recording, videotape display, signs or billboards, motion pictures, or
other public media), sales literature (i.e., any written communication
distributed or made generally available to customers or the public,
including brochures, circulars, research reports, market letters, form
letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature, or published article), educational or training materials
or other communications distributed or made generally available to some or
all agents or employees, registration statements, prospectuses, statements
of additional information, shareholder reports, and proxy materials and
any other material constituting sales literature or advertising under NASD
Conduct Rules, the 1940 Act or the 1933 Act.
ARTICLE V Fees and Expenses
-----------------
5.1 The Trust and Underwriter shall pay no fee or other compensation to the
Company under this Agreement, except subject to a Rule 12b-1 Plan to
finance distribution expenses, in which case, subject to obtaining any
required exemptive orders or other regulatory approvals, the Underwriter
may make payments to the Company or to the underwriter for the Contracts
if and in amounts agreed to by the Underwriter in writing. Each party,
however, shall, in accordance with the allocation of expenses specified in
this Agreement, reimburse other parties for expenses initially paid by one
party but allocated to another party. In addition, nothing herein shall
prevent the parties hereto from otherwise agreeing to perform, and
arranging for appropriate compensation for, other services relating to the
Trust and/or to the Separate Accounts.
5.2 All expenses incident to performance by the Trust of this Agreement shall
be paid by the Trust to the extent permitted by law. All Trust shares will
be duly authorized for issuance and registered in accordance with
applicable federal law and to the extent deemed advisable by the Trust, in
accordance with applicable state law, prior to sale. The Trust shall bear
the expenses for the cost of registration and qualification of the Trust's
shares, preparation and filing of the Trust's prospectus and registration
statement. Trust
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proxy materials and reports, printing proxy materials and annual reports
for existing Contract owners, setting in type the Trust's prospectuses,
the preparation of all statements and notices required by any federal or
state law, all taxes on the issuance or transfer of the Trust's shares,
and any expenses permitted to be paid or assumed by the Trust pursuant to
any Rule 12b-1 Plan under the 1940 Act duly adopted by the Trust.
5.3 The Company shall bear the expenses of printing and distributing the Trust
prospectuses and proxy statements and shareholder reports other than to
existing contract owners. The Company shall bear all expenses associated
with the registration, qualification, and filing of the Contracts under
applicable federal securities and state insurance laws; the cost of
preparing, printing, and distributing the Contracts' prospectuses and
statements of additional information; and the cost of printing and
distributing annual individual account statements for Contract owners as
required by state insurance laws.
ARTICLE VI Diversification
---------------
6.1 The Trust will at all times invest money from the Contracts in such a
manner as to ensure that the Contracts will be treated as variable
contracts under the Internal Revenue Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Trust will
comply with Section 817(h) of the Internal Revenue Code and Treasury
Regulation 1.817-5, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts and any
amendments or other modifications to such Section or Regulations or
successors thereto. The Trust or the Underwriter will notify the Company
immediately upon having a reasonable basis for believing that a Portfolio
has ceased to so comply or that a Portfolio might not so comply in the
future.
ARTICLE VII Potential Conflicts
-------------------
7.1 If and to the extent that the Trust engages in mixed and shared funding as
contemplated by exemptive relief provided by the SEC and applicable to the
Trust, this Article VII shall apply.
7.2 The Board of Trustees of the Trust (the "Trust Board") will monitor the
Trust for the existence of any material irreconcilable conflict among the
interests of the Contract owners of all separate accounts investing in the
Trust. A material irreconcilable conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory
authority; (b) a change in applicable federal or state insurance, tax, or
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securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Fund are being managed; (e) a difference in voting
instructions given by variable annuity contract owners, variable life
insurance contract owners, and trustees of qualified pension or retirement
plans; (f) a decision by a Participating Insurance Company to disregard
the voting instructions of Contract owners; or (g) if applicable, a
decision by a qualified pension or retirement plan to disregard the voting
instructions of plan participants. The Trust Board shall promptly inform
the Company if it determines that a material irreconcilable conflict
exists and the implications thereof. A majority of the Trust Board shall
consist of Trustees who are not "interested persons" of the Trust.
7.3 The Company has reviewed a copy of the Mixed and Shared Funding Order, and
in particular, has reviewed the conditions to the requested relief set
forth therein. The Company agrees to assist the Trust Board in carrying
out its responsibilities under the Mixed and Shared Funding Order, by
providing the Trust Board with all information reasonably necessary for
the Trust Board to consider any issues raised. This includes, but is not
limited to, an obligation by the Company to inform the Trust Board
whenever Contract owner voting instructions are disregarded. The Trust
Board shall record in its minutes or other appropriate records, all
reports received by it and all action with regard to a conflict.
7.4 If it is determined by a majority of the Trust Board, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists,
the Company shall, at its expense and to the extent reasonably practicable
(as determined by a majority of the disinterested Trustees), take whatever
steps are necessary to remedy or eliminate the material irreconcilable
conflict, up to and including: (a) withdrawing the assets allocable to
some or all of the Separate Accounts from the relevant Fund and
reinvesting such assets in a different investment medium, including
another Fund, or in the case of insurance company participants submitting
the question as to whether such segregation should be implemented by a
vote of all affected Contract owners and, as appropriate, segregating the
assets of any appropriate group (i.e., annuity Contract owners or life
insurance
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Contract owners of one or more Participating Insurance Companies) that
votes in favor of such segregation, or offering to the affected Contract
owners the option of making such a change; and (b) establishing a new
registered management investment company or managed separate account.
7.5 If the Company's disregard of voting instructions could conflict with the
majority of Contract owner voting instructions, and the Company's judgment
represents a minority position or would preclude a majority vote, the
Company may be required, at the Trust's election, to withdraw the Separate
Account's investment in the Trust and terminate this Agreement with
respect to such Separate Account, and no charge or penalty will be imposed
as a result of such withdrawal. Any such withdrawal and termination shall
take place within 60 days after written notice is given that this
provision is being implemented, subject to applicable law but in any event
consistent with the terms of the Mixed and Shared Funding Order. Until
such withdrawal and termination is implemented, the Underwriter and the
Trust shall continue to accept and implement orders by the Company for the
purchase and redemption of shares of the Trust. Such withdrawal and
termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of
disinterested Trustees.
7.6 If a particular state insurance regulator's decision applicable to the
Company conflicts with the majority of other state insurance regulators,
then the Company will withdraw the Separate Account's investment in the
Trust and terminate this Agreement with respect to such Separate Account
within 60 days after the Trust informs the Company of a material
irreconcilable conflict, subject to applicable law but in any event
consistent with the terms of the Mixed and Shared Funding Order. Until
such withdrawal and termination is implemented, the Underwriter and the
Trust shall continue to accept and implement orders by the Company for the
purchase and redemption of shares of the Trust. Such withdrawal and
termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of
disinterested Trustees.
7.7 For purposes of Sections 7.3 through 7.6 of this Agreement, a majority of
the disinterested members of the Trust and Board shall determine whether
any proposed action adequately remedies any material irreconcilable
conflict, but in no event will the Trust or the Underwriter be required to
establish a new funding medium for the
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Contracts. The Company shall not be required by Section 7.3 to establish a
new funding medium for the Contracts if an offer to do so has been
declined by vote of a majority of Contract owners materially adversely
affected by the material irreconcilable conflict.
7.8 The Trust Board's determination of the existence of a material
irreconcilable conflict and it implication will be made known in writing
to the Company.
7.9 The Company shall at least annually submit to the Trust Board such
reports, materials, or data as the Trust Board may reasonably request so
that the Trustees may fully carry out the duties imposed upon the Trust
Board by the Mixed and Shared Funding Order, and said reports, materials
and data shall be submitted more frequently if deemed appropriate by the
Trust Board.
7.10 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule
6e-3(T) is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or
shared funding (as defined in the Mixed and Shared Funding Order) on terms
and conditions materially different from those contained in the Mixed and
Shared Funding Order, the Trust and/or the Company, as appropriate, shall
take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T),
as amended, and Rule 6e-3, as adopted, to the extent such rules are
applicable.
ARTICLE VIII Indemnification
---------------
8.1 Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Trust,
the Underwriter, and each of the Trust's or the Underwriter's directors,
officers, employees, or agents and each person, if any, who controls the
Trust or the Underwriter within the meaning of such terms under the
federal securities laws (collectively, the "indemnified parties" for
purposes of this Section 8.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent
of the Company), or litigation (including reasonable legal and other
expenses), to which the indemnified parties may become subject under any
statute, regulation, 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 sale or acquisition of the Trust's
shares or the Contracts and:
(1) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the
registration statements,
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prospectuses or statements of additional information for the
Contracts or contained in the Contracts, or sales literature or
other promotional material for the Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the
circumstances in which they were made; provided that this
agreement to indemnify shall not apply as to any indemnified
party if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with
information furnished to the Company by or on behalf of the Trust
for use in the registration statement, prospectus or statement of
information for the Contracts, or in the Contracts or sales
literature (or any amendment or supplement) or otherwise for use
in connection with the sale of the Contracts or Trust shares; or
(2) arise out of or as a result of statements or representations by
or on behalf of the Company (other than statements or
representations contained in the Trust registration statement,
Trust prospectus, statement of additional information or sales
literature or other promotional material of the Trust not
supplied by the Company or persons under its control) or wrongful
conduct of the Company or persons under its control, with respect
to the sale or distribution of the Contracts or Trust shares; or
(3) arise out of any untrue statement or alleged untrue statement of
a material fact contained in the Trust's registration statement,
prospectus, statement of additional information, or sales
literature or other promotional material of the Trust (or any
amendment thereof, or supplement thereto) or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement or statements
therein not misleading in light of the circumstances in which
they were made, if such a statement or omission was made in
reliance upon and in conformity with information furnished to the
Trust by or on behalf of the Company or persons under its
control; or
(4) arise as a result of any failure by the Company to provide the
services and furnish the materials or to make any payments under
the terms of this Agreement; or
(5) arise out of any material breach of any representation and/or
warranty made by the Company in this Agreement or arise out of or
result from any other material breach by the Company of this
Agreement;
except to the extent provided in Sections 8.1(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Company
may otherwise have.
(b) No party shall be entitled to indemnification by the Company
if such loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence, or reckless disregard of duty by
the party seeking indemnification.
(c) The indemnified parties will promptly notify the Company of
the commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Trust shares or the Contracts
or the operation of the Trust.
8.2 Indemnification By the Underwriter
(a) The Underwriter agrees to indemnify and hold harmless the
Company and each of its directors, officers, employees, or agents and each
person, if any,
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who controls the Company within the meaning of such terms under the
federal securities laws (collectively, the "indemnified parties" for
purposes of this Section 8.2) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent
of the Underwriter), or litigation (including reasonable legal and other
expenses) to which the indemnified parties may become subject under any
statute, regulation, 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 sale or acquisition of the Trust's
shares or the Contracts and:
(1) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus, or statement of additional
information for the Trust, or sales literature or other
promotional material of the Trust (or any amendment or supplement
to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances in which
they were made; provided that this agreement to indemnify shall
not apply as to any indemnified party if such statement or
omission or such alleged statement or omission was made in
reliance upon and in conformity with information furnished to the
Underwriter or the Trust by or on behalf of the Company for use
in the registration statement, prospectus, or statement of
additional information for the Trust or in sales literature of
the Trust (or any amendment or supplement thereto) or otherwise
for use in connection with the sale of the Contracts or Trust
shares; or
(2) arise out of or as a result of statements or representations by
or on behalf of the Trust or underwriter (other than statements
or representations contained in the Contracts or in the Contract
or Trust registration statement, the Contract or Trust
prospectus, statement of additional information, or sales
literature or other promotional material for the Contracts or of
the Trust not supplied by the Underwriter or persons under the
control of the Underwriter) or wrongful conduct of the
Underwriter or persons under the control of the Underwriter, with
respect to the sale or distribution of the Contracts or Trust
shares; or
(3) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a registration statement,
prospectus, statement of additional information, or sales
literature or other promotional material covering the Contracts
(or any amendment thereof or supplement thereto), or the omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement or
statements therein not misleading in light of the circumstances
in which they were made, if such statement or omission was made
in reliance upon and in conformity with information furnished to
the Company by or on behalf of the Underwriter or persons under
the control of the Underwriter; or
(4) arise as a result of any failure by the Underwriter to provide
the services and furnish the materials under the terms of this
Agreement (including a failure, whether unintentional or in good
faith or otherwise, to comply with the diversification
requirements and procedures related thereto specified in Article
VI of this Agreement); or
(5) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter in this
Agreement or arise out of or
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result from any other material breach of this Agreement by the
Underwriter;
except to the extent provided in Sections 8.2(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the
Underwriter may otherwise have.
(b) No party shall be entitled to indemnification by the
Underwriter if such loss, claim, damage, liability or litigation is due to
the willful misfeasance, bad faith, gross negligence, or reckless
disregard of duty by the party seeking indemnification.
(c) The indemnified parties will promptly notify the Underwriter
of the commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Contracts or the operation of
each Separate Account.
8.3 Indemnification By the Trust
(a) The Trust agrees to indemnify and hold harmless the Company
and each of its directors, officers, employees, or agents and each person,
if any, who controls the Company within the meaning of such terms under
the federal securities laws (collectively, the "indemnified parties" for
purposes of this Section 8.3) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent
of the Trust), or litigation (including reasonable legal and other
expenses) to which the indemnified parties may become subject under any
statute, regulation, 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 operations of the Trust and:
(1) arise as a result of any failure by the Trust to provide the
services and furnish the materials under the terms of this
Agreement (including a failure, whether unintentional or in good
faith or otherwise, to comply with the diversification
requirements and procedures related thereto specified in Article
VI of this Agreement); or
(2) arise out of or result from any material breach of any
representation and/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;
except to the extent provided in Sections 8.3(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Trust may
otherwise have.
(b) No party shall be entitled to indemnification by the Trust
if such loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence, or reckless disregard of duty by
the party seeking indemnification.
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(c) The Indemnified parties will promptly notify the Trust of
the commencement of any litigation or proceedings against it in connection
with the issuance or sale of the Contracts or the operation of each
Separate Account.
8.4 Indemnification Procedure
Any person obligated to provide indemnification under this Article VIII
("indemnifying party" for the purpose of this Section 8.4) shall not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification
under this Article VIII ("indemnified party" for the purpose of this
Section 8.4) unless such indemnified party shall have notified the
indemnifying party in writing within a reasonable time after the summons
or other first legal process giving information of the nature of the claim
shall have been served upon such indemnified party (or after such party
shall have received notice of such service on any designated agent), but
failure to notify the indemnifying party of any such claim shall not
relieve the indemnifying party from any liability which it may have to the
indemnified party against whom such action is brought under the
indemnification provision of this Article VIII, except to the extent that
the failure to notify results in the failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a
result of failure to give such notice. In case any such action is brought
against the indemnified party, the indemnifying party will be entitled to
participate, at its own expense, in the defense thereof. The indemnifying
party also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
indemnifying party to the indemnified party of the indemnifying party's
election to assume the defense thereof, the indemnified party shall bear
the fees and expenses of any additional counsel retained by it, and the
indemnifying party will 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, unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
The
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indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
A successor by law of the parties to this Agreement shall be entitled
to the benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive
any termination of this Agreement.
ARTICLE IX Applicable Law
--------------
9.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Delaware without
giving effect to conflicts of laws provisions thereof.
9.2 This Agreement shall be subject to the provisions of the 1933, 1934, and
1940 Acts, and the rules, regulations, and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may
grant (including, but not limited to, the Mixed and Shared Funding Order)
and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X Termination
-----------
10.1 This Agreement shall terminate automatically in the event of its
assignment, unless made with written consent of each party; or:
(a) at the option of any party upon six months advance written
notice to the other parties; or
(b) at the option of the Company if shares of the Funds
delineated in Exhibit B are not reasonably available to meet the
requirements of the Contracts as determined by the Company; or
(c) at the option of the Trust upon institution of formal
proceedings against the Company by the NASD, the SEC, the insurance
commission of any state or any other regulatory body, which would have a
material adverse effect on the Company's ability to perform its
obligations under this Agreement; or
(d) at the option of the Company upon institution of formal
proceedings against the Trust or the Underwriter by the NASD, the SEC, or
any state securities or insurance department or any other regulatory body,
which would have a
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material adverse effect on the Underwriter's or the Trust's ability to
perform its obligations under this Agreement; or
(e) at the option of the Trust or the Underwriter by written
notice to the Company, if the Company gives the Trust and the Underwriter
the written notice specified in Section 1.8(b) hereof and at the time such
notice was given there was no notice of termination outstanding under any
other provision of this Agreement; provided, however, any termination
under this Section 10.1(e) shall be effective sixty (60) days after the
notice specified in Section 1.8(b) was given; or
(f) at the option of the Company or the Trust upon a
determination by a majority of the Trust Board, or a majority of the
disinterested Trustees, that a material irreconcilable conflict exists
among the interests of (i) all contract owners of variable insurance
products of all separate accounts, or (ii) the interests of the
Participating Insurance Companies investing in the Trust as delineated in
Article VII of this Agreement; or
(g) at the option of the Company if the trust ceases to qualify
as a Regulated Investment Company under Subchapter M of the Internal
Revenue Code, or under any successor or similar provision, or if the
Company reasonably believes that the Trust may fail to so qualify; or
(h) at the option of the Company if the Trust fails to meet the
diversification requirements specified in Article VI hereof or if the
Company reasonably believes that the Trust will fail to meet such
requirements; or
(i) at the option of any party to this Agreement, upon another
party's material breach of any provision of this Agreement; or
(j) at the option of the Company, if the Company determines in
its sole judgment exercised in good faith, that either the Trust or the
Underwriter has suffered a material adverse change in its business,
operations, or financial condition since the date of this Agreement or is
the subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of the Company or
the Contracts (including the sale thereof); or
(k) at the option of the Trust or Underwriter, if the Trust or
Underwriter respectively, shall determine in its sole judgment exercised
in good faith,
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that the Company has suffered a material adverse change in its business,
operations, or financial condition since the date of this Agreement or is
the subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of the Trust or
Underwriter; or
(l) subject to the Trust's compliance with Article VI hereof, at
the option of the Trust in the event any of the Contracts are not issued
or sold in accordance with applicable requirements of federal and/or state
law. Termination shall be effective immediately upon such occurrence
without notice.
10.2 Notice Requirement
(a) In the event that any termination of this Agreement is based
upon the provisions of Article VII, such prior written notice shall be
given in advance of the effective date of termination as required by such
provisions.
(b) In the event that any termination of this Agreement is based
upon the provisions of Sections 10.1(b) - (d) or 10.1(g) - (i), prompt
written notice of the election to terminate this Agreement for cause shall
be furnished by the party terminating the Agreement to the non-terminating
parties, with said termination to be effective upon receipt of such notice
by the non-terminating parties.
(c) In the event that any termination of this Agreement is based
upon the provisions of Sections 10.1(j) or 10.1(k), prior written notice
of the election to terminate this Agreement for cause shall be furnished
by the party terminating this Agreement to the nonterminating parties.
Such prior written notice shall be given by the party terminating this
Agreement to the non-terminating parties at least 30 days before the
effective date of termination.
10.3 It is understood and agreed that the right to terminate this Agreement
pursuant to Section 10.1(a) may be exercised for any reason or for no
reason.
10.4 Effect of Termination
(a) Notwithstanding any termination of this Agreement pursuant
to Section 10.1 of this Agreement and subject to Section 1.3 of this
Agreement, the Company may require the Trust and the Underwriter to
continue to make available additional shares of the Trust for so long
after the termination of this Agreement as the Company desires pursuant to
the terms and conditions of this Agreement as provided in
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paragraph (b) below, for all Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, the owners of the Existing
Contracts shall be permitted to reallocate investments in the Trust,
redeem investments in the Trust and/or invest in the Trust upon the making
of additional purchase payments under the Existing Contracts. The parties
agree that this Section 10,4 shall not apply to any terminations under
Article VII and the effect of such Article VII terminations shall be
governed by Article VII of this Agreement.
(b) If shares of the Trust continue to be made available after
termination of this Agreement pursuant to this Section 10.4, the
provisions of this Agreement shall remain in effect except for Section
10.1(a) ad thereafter the Trust, the Underwriter, or the Company may
terminate the Agreement, as so continued pursuant to this Section 10.4,
upon written notice to the other party, such notice to be for a period
that is reasonable under the circumstances but need not be for more than
90 days.
10.5 The Company shall not redeem Fund shares attributable to the Contracts (as
opposed to Fund shares attributable to the Company's assets held in the
Account) except (i) as necessary to implement Contract Owner initiated or
approved transactions, or (ii) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"). Upon
request, the Company will promptly furnish to the Trust and the
Underwriter the opinion of counsel for the Company (which counsel shall be
reasonably satisfactory to the Trust and the Underwriter) to the effect
that any redemption pursuant to clause (ii) above is a Legally Required
Redemption. Furthermore, except in cases where permitted under the terms
of the Contracts, the Company shall not prevent Contract Owners from
allocating payments to a Fund that was otherwise available under the
Contracts without first giving the Trust or the Underwriter 90 days notice
of its intention to do so.
ARTICLE XI Notices
-------
Any notice shall be deemed duly given only if sent by hand, evidenced by
written receipt or by certified mail, return receipt requested, to the
other party at the address of such party set forth below or at such other
address as such party may from time to time specify
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in writing to the other party. All notices shall be deemed given three
business days after the date received or rejected by the addressee.
If to the Trust: C. Xxxxx Xxxxxxx, Esq.
Secretary
Xxxxx Fargo Variable Trust
000 Xxxxxx Xxxxxx, Xxxxx 00
Xxx Xxxxxxxxx, XX 00000
If to the Company: Xxxxxxxx X. Xxxxx
Golden American Life Insurance Company
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
If to the Underwriter: Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Vice President
ARTICLE XII Miscellaneous
-------------
11.1 All persons dealing with the Trust must look solely to the property of the
Trust for the enforcement of any claims against the Trust as neither the
Trustees, officers, agents or shareholders assume any personal liability
for obligations entered into on behalf of the Trust.
11.2 Subject to law and regulatory authority, each party hereto shall treat as
confidential all information reasonably identified as such in writing by
any other party hereto (including without limitation the names and
addresses of the owners of the Contracts) and, except as contemplated by
this Agreement, shall not disclose, disseminate, or utilize such
confidential information until such time as it may come into the public
domain without the express prior written consent of the affected party.
11.3 The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
11.4 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
11.5 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
11.6 This Agreement shall not be assigned by any party hereto without the prior
written consent of all the parties.
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11.7 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
SEC, the NASD, and state insurance regulators) and shall permit each other
and such authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby.
11.8 Each party represents that the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as applicable,
by such party and when so executed and delivered this Agreement will be
the valid and binding obligation of such party enforceable in accordance
with its terms.
11.9 The parties to this agreement may amend the exhibits to this Agreement
from time to time to reflect changes in or relating to the Contracts, the
Separate Accounts or the Funds of the Trust.
11.10 The Trust has filed a Certificate of Trust with the Secretary of State of
The State of Delaware. The Company acknowledges that the obligations of or
arising out of the Trust's Declaration of Trust are not binding upon any
of the Trust's Trustees, officers, employees, agents or shareholders
individually, but are binding solely upon the assets and property of the
Trust in accordance with its proportionate interest hereunder. The Company
further acknowledges that the assets and liabilities of each Fund are
separate and distinct and that the obligations of or arising out of this
instrument are binding solely upon the assets or property of the Fund on
whose behalf the Trust has executed this instrument. The Company also
agrees that the obligations of each Fund hereunder shall be several and
not joint, in accordance with its proportionate interest hereunder, and
the Company agrees not to proceed against any Fund for the obligations of
another Fund.
11.11 Except as otherwise expressly provided in this Agreement, neither the
Trust nor the underwriter nor any affiliate thereof shall use any
trademark, trade name, service xxxx or logo of the Company or any of its
affiliates, or any variation of any such trademark, trade name service
xxxx or logo, without the Company's prior consent, the granting of which
shall be at the Company's sole option. Except as otherwise expressly
provided in this Agreement, neither the Company nor any affiliate thereof
shall use any trademark, trade
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name, service xxxx or logo of the Trust or of the Underwriter, or any
variation of any such trademark, trade name, service xxxx or logo, without
the prior consent of either the Trust or of the Underwriter, as
appropriate, the granting of which shall be at the sole option of the
Trust or of the Underwriter, as applicable.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Xxxxx Fargo Variable Trust
--------------------------
By: /s/ C. Xxxxx Xxxxxxx
------------------------------
Name: C. Xxxxx Xxxxxxx
Title: Secretary
Date: 1/13/04
Xxxxxxxx Inc.
-------------
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
Title: SVP
Date: 1/15/04
Golden American Life Insurance Company
--------------------------------------
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Date: December 16, 2003
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EXHIBIT A
Separate Accounts and Contracts
Subject to the Participation Agreement
--------------------------------------
Separate Accounts: Separate Account B of Golden American Life Insurance Company
(Please note that as of 1/1/04, the company will be named,
ING USA Annuity and Life Insurance Company)
Contracts: Xxxxx Fargo ING Opportunities
Xxxxx Fargo ING Landmark
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EXHIBIT B
Funds Subject to the Participation Agreement
--------------------------------------------
Xxxxx Fargo VT Asset Allocation Fund
Xxxxx Fargo VT Equity Income Fund
Xxxxx Fargo VT Equity Value Fund
Xxxxx Fargo VT Large Company Growth Fund
Xxxxx Fargo VT Money Market Fund
Xxxxx Fargo VT Small Cap Growth Fund
Xxxxx Fargo VT Total Return Bond Fund
