EXHIBIT (8)(a)
PARTICIPATION AGREEMENT
BY AND AMONG
GOLDEN AMERICAN LIFE INSURANCE COMPANY OF IOWA
AND
WARBURG, XXXXXX TRUST
AND
WARBURG, XXXXXX COUNSELLORS, INC.
AND
COUNSELLORS SECURITIES INC.
THIS AGREEMENT, made and entered into this 1 day of
October, 1997, by and among Golden American Life Insurance Company,
organized under the laws of the State of Delaware (the
"Company"), on its own behalf and on behalf of each separate
account of the Company named in Schedule 1 to this Agreement as
may be amended from time to time (each account collectively
referred to as the "Account"), Warburg, Xxxxxx Trust, an open-end
management investment company and business trust organized under
the laws of the Commonwealth of Massachusetts (the "Fund");
Warburg, Xxxxxx Counsellors, Inc. a corporation organized under
the laws of the State of Delaware (the "Adviser"); and
Counsellors Securities Inc., a corporation organized under the
laws of the State of New York ("CSI").
WHEREAS, the Fund engages in business as an open--end
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 that have
entered into participation agreements similar to this Agreement
(the "Participating Insurance Companies"), and
WHEREAS, beneficial interests in the Fund are divided into
several series of shares, each representing the interest in a
particular managed portfolio of securities and other assets (the
"Portfolios"); and
WHEREAS, the Fund has received an order from the Securities
& Exchange Commission (the "SEC") granting 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 Fund to be sold to and held by
variable annuity separate accounts and variable life insurance
separate accounts of both affiliated and unaffiliated
Participating Insurance Companies and qualified pension and
retirement plans outside of the separate account context (the
"Mixed and Shared Funding Exemptive Order"). The parties to this
Agreement agree that the conditions or undertakings specified in
the Mixed and
Shared Funding Exemptive Order and that may be imposed on the
Company, the Fund, the Adviser and/or CSI by virtue of the
receipt of such order by the SEC will be incorporated herein by
reference, and such parties agree to comply with such conditions
and undertakings to the extent applicable to each such party; and
WHEREAS, the Fund 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 contracts (the "Contracts") under the
1933 Act; and
WHEREAS, the Account is a duly organized, validly existing
segregated asset account, 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 Account as a unit
investment trust under the 1940 Act; and
WHEREAS, CSI, the Fund's distributor, is registered as a
broker-dealer with the SEC under the Securities Exchange Act of
1934, as amended (the "1934 Act"), and is a member in good
standing of the National Association of Securities Dealers, Inc.
(the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance
laws and regulations, the Company intends to purchase shares of
the Portfolios named in Schedule 2, as such schedule may be
amended from time to time (the "Designated Portfolios") on behalf
of the Account to fund the Contracts, and the Fund is authorized
to sell such shares to unit investment trusts such as the Account
at net asset value;
NOW, THEREFORE, in consideration of their mutual promises,
the Company, the Fund, the Adviser and CSI agree as follows:
ARTICLE I. SALE OF FUND SHARES
1.1. The Fund agrees to sell to the Company those shares of
the Designated Portfolios that each Account orders, executing
such orders on a daily basis at the net asset value next computed
after receipt and acceptance by the Fund or its designee of the
order for the shares of the Fund. For purposes of this Section
1.1, the Company will
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be the designee of the Fund for receipt of such orders
from each Account and receipt by such designee will
constitute receipt by the Fund; provided that the Fund
receives notice of such order by 10:00 a.m. Eastern Time
on the next following business day ("T+1"). "Business
Day" will mean any day on which the New York Stock
Exchange is open for trading and on which the Fund
calculates its net asset value pursuant to the rules of
the SEC.
1.2. The Company will pay for Fund shares on T+1 that an order
to purchase Fund shares is made in accordance with Section
1.1 above. Payment will be in federal funds transmitted
by wire. This wire transfer will be initiated by 12:00
p.m. Eastern Time.
1.3. The Fund agrees to make shares of the Designated
Portfolios 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 Fund calculates its Designated Portfolio
net asset value pursuant to rules of the SEC and the Fund
shall use reasonable efforts to calculate such net asset
value on each day the New York Stock Exchange is open for
trading; provided, however, that the Board of Trustees of
the Fund (the "Fund Board") may refuse to sell shares of
any Portfolio to any person, or suspend or terminate the
offering of shares of any Portfolio if such action is
required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Fund
Board, acting in good faith and in light of its fiduciary
duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of
such Portfolio.
1.4. On each Business Day on which the Fund calculates its net
asset value, the Company will aggregate and calculate the
net purchase or redemption orders for each Account
maintained by the Fund in which contract owner assets are
invested. Net orders will only reflect orders that the
Company has received prior to the close of regular trading
on the New York Stock Exchange, Inc. (the "NYSE")
(currently 4:00 p.m., Eastern Time) on that Business Day.
Orders that the Company has received after the close of
regular trading on the NYSE will be treated as though
received on the next Business Day. Each communication of
orders by the Company will constitute a representation
that such orders were received by it prior to the close of
regular trading on the NYSE on the Business Day on which
the purchase or redemption order is priced in accordance
with Rule 22c-1 under the 1940 Act. Other procedures
relating to the handling of orders will be in accordance
with the prospectus and statement of information of the
relevant Designated Portfolio or with oral or written
instructions that CSI or the Fund will forward to the
Company from time to time.
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1.5. The Fund agrees that shares of the Fund will be sold only
to Participating Insurance Companies and their separate
accounts, qualified pension and retirement plans or such
other persons as are permitted under applicable provisions
of the Internal Revenue Code of 1986, as amended, (the
"Internal Revenue Code"), and regulations promulgated
thereunder, the sale to which will not impair the tax
treatment currently afforded the Contracts. No shares of
any Portfolio will be sold to the general public except as
set forth in this Section 1.5.
1.6. The Fund agrees to redeem for cash, upon the Company's
request, any full or fractional shares of the Fund held by
the Company, executing such requests on a daily basis at
the net asset value next computed after receipt and
acceptance by the Fund or its agent of the request for
redemption. For purposes of this Section 1.6, the Company
will be the designee of the Fund for receipt of requests
for redemption from each Account and receipt by such
designee will constitute receipt by the Fund, provided the
Fund receives notice of request for redemption by 10:00
a.m. Eastern Time on the next following Business Day.
Payment will be in federal funds transmitted by wire to
the Company's account as designated by the Company in
writing from time to time, on the same Business Day the
Fund receives notice of the redemption order from the
Company. The Fund reserves the right to delay payment of
redemption proceeds, but in no event may such payment be
delayed longer than the period permitted by the 0000 Xxx.
The Fund will not bear any responsibility whatsoever for
the proper disbursement or crediting of redemption
proceeds; the Company alone will be responsible for such
action. If notification of redemption is received after
10:00 a.m. Eastern Time, payment for redeemed shares will
be made on the next following Business Day.
1.7. The Company agrees to purchase and redeem the shares of
the Designated Portfolios offered by the then current
prospectus of the Fund in accordance with the provisions
of such prospectus.
1.8. Issuance and transfer of the Fund's shares will be by book
entry only. Stock certificates will not be issued to the
Company or any Account. Purchase and redemption orders
for Fund shares will be recorded in an appropriate title
for each Account or the appropriate subaccount of each
Account.
1.9. The Fund will furnish same day notice (by telecopier,
followed by written confirmation) to the Company of the
declaration of any income, dividends or capital gain
distributions payable on each Designated Portfolio's shares. The
Company hereby elects to receive all such dividends and
distributions as are payable on the Designated Portfolio shares
in the form of additional shares of that Designated Portfolio.
The Fund will notify the Company of the number of shares so
issued as
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payment of such dividends and distributions. The Company
reserves the right to revoke this election upon reasonable
prior notice to the Fund and to receive all such dividends
and distributions in cash.
1.10. The Fund will make the net asset value per share for each
Designated Portfolio available to the Company on a daily
basis as soon as reasonably practical after the net asset
value per share is calculated and will use its best
efforts to make such net asset value per share available
by 6:00 p.m., Eastern Time, but in no event later than
7:00 p.m., Eastern Time, each business day.
1.11. In the event adjustments are required to correct any error
in the computation of the net asset value of the Fund's
shares, the Fund or CSI will notify the Company as soon as
practicable after discovering the need for those
adjustments that result in an aggregate reimbursement of
$150 or more to any one Account maintained by a Designated
Portfolio unless notified otherwise by the Company (or, if
greater, results in an adjustment of $10 or more to each
contractowner's account). Any such notice will state for
each day for which an error occurred the incorrect price,
the correct price and, to the extent communicated to the
Fund's shareholders, the reason for the price change. The
Company may send this notice or a derivation thereof (so
long as such derivation is approved in advance by CSI or
the Adviser) to contractowners whose accounts are affected
by the price change. The parties will negotiate in good
faith to develop a reasonable method for effecting such
adjustments. The Fund shall provide the Company, on
behalf of the Account, with a prompt adjustment to the
number of shares purchased or redeemed to reflect the
correct share net asset value.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that the Contracts
are or will be registered under the 1933 Act and that the
Contracts will be issued and sold in compliance with all
applicable federal and state laws, including state insurance
suitability requirements. The Company further represents and
warrants that it is an insurance company duly organized and in
good standing under applicable law and that it has legally and
validly established each Account as a separate account under
applicable state law and has registered the Account as a unit
investment trust in accordance with the provisions of thin 1940
Act to serve as a segregated investment account for the
Contracts, and that it will maintain such registration for so
long as any Contracts are outstanding. The Company will amend
the registration statement under the 1933 Act for the Contracts
and the registration statement under the 1940 Act for the Account
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
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will 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. The Company represents that the Contracts are currently
and at the time of issuance will be treated as endowment,
annuity or life insurance contracts under applicable
provisions of the Internal Revenue Code, and that it will
make every effort to maintain such treatment and that it
will notify the Fund and the Adviser immediately upon
having a reasonable basis for believing that the Contracts
have ceased to be so treated or that they might not be so
treated in the future.
2.3. The Company represents and warrants that it will not
purchase shares of the Designated Portfolios with assets
derived from tax-qualified retirement plans except,
indirectly, through Contracts purchased in connection with
such plans.
2.4. The Fund represents and warrants that Fund shares of the
Designated Portfolios sold pursuant to this Agreement will
be registered under the 1933 Act and duly authorized for
issuance in accordance with applicable law and that the
Fund is and will remain registered under the 1940 Act for
as long as such shares of the Designated Portfolios are
outstanding. The Fund will amend the registration
statement for its shares under the 1933 Act and the 1940
Act from time to time as required in order to effect the
continuous offering of its shares. The Fund will register
and qualify the shares of the Designated Portfolios for
sale in accordance with the laws of the various states
only if and to the extent deemed advisable by the Fund.
2.5. The Fund represents that it is currently qualified as a
Regulated Investment Company under Subchapter M of the
Internal Revenue Code, and that it will make every effort
to maintain such qualification (under Subchapter M or any
successor or similar provision) and that it will notify
the Company immediately upon having a reasonable basis for
believing that it has ceased to so qualify or that it
might not so qualify in the future.
2.6. The Fund represents and warrants that in performing the
services described in this Agreement, the Fund will comply
with all applicable laws, rules and regulations. The Fund
makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and
expenses and investment policies, objectives and
restrictions) complies with the insurance laws and
regulations of any state. The Fund and CSI agree that
upon request they will use their best efforts to furnish
the information required by state insurance laws so that
the Company can obtain the authority needed to issue the
Contracts in the various states.
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2.7. The Fund currently does not intend to make any payments to
finance distribution expenses pursuant to Rule 12b-1 under
the 1940 Act, although it reserves the right to make such
payments in the future. To the extent that it decides to
finance distribution expenses pursuant to Rule 12b-1 the
Fund undertakes to have its Fund Board formulate and
approve any plan under Rule 12b-1 to finance distribution
expenses in accordance with the 1940 Act.
2.8. CSI represents and warrants that it will distribute the
Fund shares of the Designated Portfolios in accordance
with all applicable federal and state securities laws
including, without limitation, the 1933 Act, the 1934 Act
and the 0000 Xxx.
2.9. The Fund represents that it is lawfully organized and
validly existing under the laws of the Commonwealth of
Massachusetts and that it does and will comply in all
material respects with applicable provisions of the 0000
Xxx.
2.10. CSI represents and warrants that it is and will remain
duly registered under all applicable federal and state
securities laws and that it will perform its obligations
for the Fund in accordance in all material respects with
any applicable state and federal securities laws.
2.11. The Fund and CSI represent and warrant that all of their
trustees, officers, employees, investment advisers, and
other individuals/entities having access to the funds
and/or securities of the Fund are and continue to be at
all times covered by a blanket fidelity bond or similar
coverage for the benefit of the Fund 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.
ARTICLE III. PROSPECTUSES AND PROXY STATEMENTS; VOTING
3.1. The Fund or CSI will provide the Company, at the Fund's
or its affiliate's expense, with as many copies of the current
Fund prospectus for the Designated Portfolios as the Company may
reasonably request for distribution, at the Company's expense, to
prospective contractowners and applicants. The Fund or CSI will
provide, at the Fund's or its affiliate's expense, as many copies
of said prospectus as necessary for distribution, at the
Company's expense, to existing contractowners. The Fund or CSI
will provide the copies of said prospectus to the Company or to
its mailing agent. If requested by the Company in lieu thereof,
the Fund or CSI will provide such documentation, including a
computer diskette or a final copy of a current
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prospectus set in type at the Fund's or its affiliate's
expense, and such other assistance as is reasonably
necessary in order for the Company at least annually (or
more frequently if the Fund prospectus is amended more
frequently) to have the Fund's prospectus and the
prospectuses of other mutual funds in which assets
attributable to the Contracts may be invested printed
together in one document, in which case the Fund or its
affiliate will bear its reasonable share of expenses as
described above, allocated based on the proportionate
number of pages of the Fund's and other fund's respective
portions of the document.
3.2. The Fund or CSI will provide the Company, at the Fund's or
its affiliate's expense, with as many copies of the
statement of additional information as the Company may
reasonably request for distribution, at the Company's
expense, to prospective contractowners and applicants.
The Fund or CSI will provide, at the Fund's or its
affiliate's expense, as many copies of said statement of
additional information as necessary for distribution, at
the Company's expense, to any existing contractowner who
requests such statement or whenever state or federal law
otherwise requires that such statement be provided. The
Fund or CSI will provide the copies of said statement of
additional information to the Company or to its mailing
agent.
3.3. The Fund or CSI, at the Fund's or its affiliate's expense,
will provide the Company or its mailing agent with copies
of its proxy material, if any, reports to shareholders and
other communications to shareholders in such quantity as
the Company will reasonably require. The Company will
distribute this proxy material, reports and other
communications to existing contract owners and tabulate
the votes.
3.4. If and to the extent required by law the Company will:
(a) solicit voting instructions from
contractowners;
(b) vote the shares of the Designated
Portfolios held in the Account in accordance with
instructions received from contractowners; and
(c) vote shares of the Designated Portfolios
held in the Account for which no timely
instructions have been received, as well as shares
it owns, in the same proportion as shares of such
Designated Portfolio for which instructions have
been received from the Company's contractowners;
so long as and to the extent that the SEC continues to
interpret the 1940 Act to require pass-through voting
privileges for variable contractowners. Except as set
forth above, the Company reserves the right to vote Fund
shares held in any segregated asset account in its own
right, to the extent permitted by law. The
8
Company will be responsible for assuring that each of its
separate accounts participating in the Fund calculates
voting privileges in a manner consistent with all legal
requirements, including the Mixed and Shared Funding
Exemptive Order.
3.5. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular, the
Fund either will provide for annual meetings (except
insofar as the SEC may interpret Section 16 of the 1940
Act not to require such meetings) or, as the Fund
currently intends to comply with Section 16(c) of the 1940
Act (although the Fund is not one of the trusts described
in Section 16(c) of that Act) as well as with
Sections 16(a) and, if and when applicable, 16(b).
Further, the Fund will act in accordance with the SEC's
interpretation of the requirements of Section 16(a) with
respect to periodic elections of trustees and with
whatever rules the SEC may promulgate with respect
thereto.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. CSI will provide the Company on a timely basis with
investment performance information for each Designated
Portfolio in which the Company maintains an Account,
including total return for the preceding calendar month
and calendar quarter, the calendar year to date, and the
prior one-year, five-year, and ten year (or life of the
Fund) periods. The Company may, based on the SEC mandated
information supplied by CSI, prepare communications for
contractowners ("Contractowner Materials"). The Company
will provide copies of all Contractowner Materials
concurrently with their first use for CSI's internal
recordkeeping purposes. It is understood that neither CSI
nor any Designated Portfolio will be responsible for
errors or omissions in, or the content of, Contractowner
Materials except to the extent that the error or omission
resulted from information provided by or on behalf of CSI
or the Designated Portfolio. Any printed information that
is furnished to the Company pursuant to this Agreement
other than each Designated Portfolio's prospectus or
statement of additional information (or information
supplemental thereto), periodic reports and proxy
solicitation materials is CSI's sole responsibility and
not the responsibility of any Designated Portfolio or the
Fund. The Company agrees that the Portfolios, the
shareholders of the Portfolios and the officers and
governing Board of the Fund will have no liability or
responsibility to the Company in these respects.
4.2. The Company will not give any information or make any
representations or statements on behalf of the Fund or concerning
the Fund in connection with the sale of the Contracts other than
the information or representations contained in the registration
statement, prospectus or statement of additional information for
Fund shares, as such registration statement, prospectus and
statement of additional information
9
may be amended or supplemented from time to time, or in
reports or proxy statements for the Fund, or in published
reports for the Fund which are in the public domain or
approved by the Fund or CSI for distribution, or in sales
literature or other material provided by the Fund, Adviser
or by CSI, except with permission of CSI. Any piece of
sales literature or other promotional material intended to
be used by the Company which requires the permission of
CSI prior to use will be furnished by Company to CSI, or
its designee, at least ten (10) business days prior to its
use. No such material will be used if CSI reasonably
objects to such use within five (5) business days after
receipt.
Nothing in this Section 4.2 will be construed as
preventing the Company or its employees or agents from
giving advice on investment in the Fund.
4.3. The Fund, the Adviser or CSI will furnish, or will cause
to be furnished, to the Company or its designee, each
piece of sales literature or other promotional material in
which the Company or its Account is named, at least ten
(10) business days prior to its use. No such material
will be used if the Company reasonably objects to such use
within five (5) business days after receipt of such
material.
4.4. The Fund, the Adviser and CSI will not give any
information or make any representations or statements on
behalf of the Company or concerning the Company, each
Account, or the Contracts other than the information or
representations contained in a registration statement,
prospectus or statement of additional information for the
Contracts, as such registration statement, prospectus and
statement of additional information may be amended or
supplemented from time to time, or in published reports
for each Account or the Contracts which are in the public
domain or approved by the Company for distribution to
contractowners, or in sales literature or other material
provided by the Company, except with permission of the
Company. The Company agrees to respond to any request for
approval on a prompt and timely basis.
4.5. The Fund will provide to the Company at least one complete
copy of all registration statements, prospectuses,
statements of additions 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 Fund or its shares, contemporaneously
with the filing of such document with the SEC, the NASD or
other regulatory authority.
4.6. The Company will provide to the Fund 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
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for exemptions, requests for no action letters, and all
amendments to any of the above, that relate to the
Contracts or each Account, contemporaneously with the
filing of such document with the SEC, the NASD or other
regulatory authority.
4.7. 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, (e.g., on-line networks
such as the Internet or other electronic messages), 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 advertisements 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 the NASD rules, the 1933 Act or the 0000 Xxx.
4.8. The Fund and CSI hereby consent to the Company's use of
the names Warburg, Xxxxxx Trust - International Equity
Portfolio, or other Designated Portfolio, and Warburg,
Xxxxxx Counsellors, Inc. in connection with the marketing
of the Contracts, subject to the terms of Sections 4.1 and
4.2 of this Agreement. Such consent will terminate with
the termination of this Agreement.
ARTICLE V. FEES AND EXPENSES
5.1. The Fund, the Adviser and CSI will pay no fee or other
compensation to the Company under this Agreement except if
the Fund or any Designated Portfolio adopts and implements
a plan pursuant to Rule 12b-1 under the 1940 Act to
finance distribution expenses, then, subject to obtaining
any required exemptive orders or other regulatory
approvals, the Fund may make payments to the Company or to
the underwriter for the Contracts if and in such amounts
agreed to by the Fund in writing.
5.2. All expenses incident to performance by the Fund of
this Agreement will be paid by the Fund to the extent permitted
by law. The Fund will bear the expenses for the cost of
registration and qualification of the Fund's shares; preparation
and filing of the Fund's prospectus, statement of additional
information and registration statement, proxy materials and
reports; setting in type and printing the Fund's prospectus;
setting in type and printing proxy materials and reports by it to
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contractowners (including the costs of printing a Fund
prospectus that constitutes an annual report); the
preparation of all statements and notices required by any
federal or state law; all taxes on the issuance or
transfer of the Fund's shares; any expenses permitted to
be paid or assumed by the Fund pursuant to a plan, if any,
under Rule 12b-1 under the 1940 Act; and all other
expenses set forth in Article III of this Agreement.
ARTICLE VI. DIVERSIFICATION
6.1. The Adviser will ensure that the Fund will at all times
invest money from the Contracts in such a manner as to
ensure that the Contracts will be treated as variable
annuity contracts under the Internal Revenue Code and the
regulations issued thereunder. Without limiting the scope
of the foregoing, the Fund will comply with Section 817(h)
of the Internal Revenue Code and Treasury Regulation
1.817-5, as amended from time to time, relating to the
diversification requirements for variable annuity,
endowment, or life insurance contracts and any amendments
or other modifications to such Section or Regulation. In
the event of a breach of this Article VI by the Fund, it
will take all reasonable steps: (a) to notify the Company
of such breach; and (b) to adequately diversify the Fund
so as to achieve compliance within the grace period
afforded by Treasury Regulation 1.817-5.
ARTICLE VII. POTENTIAL CONFLICTS
7.1. The Fund Board will monitor the Fund for the existence of
any irreconcilable material conflict among the interests
of the contractowners of all separate accounts investing
in the Fund. An irreconcilable material 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
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 Portfolio are being managed;
(e) a difference in voting instructions given by
Participating Insurance Companies or by variable annuity
and variable life insurance contractowners; or (f) a
decision by an insurer to disregard the voting
instructions of contractowners. The Fund Board will
promptly inform the Company if it determines that an
irreconcilable material conflict exists and the
implications thereof.
7.2. The Company will report any potential or existing
conflicts of which it is aware to the Fund Board. The Company
agrees to assist the Fund Board in carrying out its
responsibilities, as delineated in the Mixed and Shared Funding
Exemptive Order,
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by providing the Fund Board with all information
reasonably necessary for the Fund Board to consider any
issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Fund Board
whenever contractowner voting instructions are to be
disregarded. The Company's responsibilities hereunder
will be carried out with a view only to the interest of
contractowners.
7.3. If it is determined by a majority of the Fund Board, or a
majority of its disinterested directors, that an
irreconcilable material conflict exists, the Company will,
at its expense and to the extent reasonably practicable
(as determined by a majority of the disinterested
directors), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and
including: (a) withdrawing the assets allocable to some
or all of the Accounts from the Fund or any Portfolio and
reinvesting such assets in a different investment medium,
including (but not limited to) another Portfolio of the
Fund, or submitting the question whether such segregation
should be implemented to a vote of all affected
contractowners and, as appropriate, segregating the assets
of any appropriate group (i.e., variable annuity
contractowners or variable life insurance contractowners
of one or more Participating Insurance Companies) that
votes in favor of such segregation, or offering to the
affected contractowners the option of making such a
change; and (b) establishing a new registered management
investment company or managed separate account.
7.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard contractowner voting
instructions, and the Company's judgment represents a
minority position or would preclude a majority vote, the
Company may be required, at the Fund's election, to
withdraw the affected subaccount of the Account's
investment in the Fund and terminate this Agreement with
respect to such subaccount; provided, however, that such
withdrawal and termination will be limited to the extent
required by the foregoing irreconcilable material conflict
as determined by a majority of the disinterested directors
of the Fund Board. No charge or penalty will be imposed
as a result of such withdrawal.
7.5. If a material irreconcilable conflict arises because 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
affected subaccount of the Account's investment in the
Fund and terminate this Agreement with respect to such
subaccount; provided, however, that such withdrawal and
termination will be limited to the extent required by the
foregoing irreconcilable material conflict as determined
by a majority of the disinterested directors of the Fund
Board. No charge or penalty will be imposed as a result
of such withdrawal.
7.6. For purposes of Sections 7.3 through 7.6 of this
Agreement, a majority of the disinterested members of the
Fund Board will determine whether any proposed action
adequately remedies any irreconcilable material conflict,
but in no event will the Fund or the Adviser (or any other
investment adviser to the Fund) be required to establish a
new funding medium for the Contracts. The Company will
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 contractowners
materially affected by the irreconcilable material
conflict.
13
7.7. The Company will at least annually submit to the Fund
Board such reports, materials or data as the Fund Board
may reasonably request so that the Fund Board may fully
carry out the duties imposed upon it as delineated in the
Mixed and Shared Funding Exemptive Order, and said
reports, materials and data will be submitted more
frequently if deemed appropriate by the Fund Board.
7.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 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
Exemptive Order) on terms and conditions materially
different from those contained in the Mixed and Shared
Funding Exemptive Order, then: (a) the Fund and/or the
Participating Insurance Companies, as appropriate, will
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; and (b) Sections
3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement
will continue in effect only to the extent that terms and
conditions substantially identical to such Sections are
contained in such Rule(s) as so amended or adopted.
ARTICLE VIII. INDEMNIFICATION
8.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Fund,
the Adviser, CSI, and each person, if any, who controls or is
associated with the Fund, the Adviser or CSI within the meaning
of such terms under the federal securities laws and any director,
trustee, officer, partner, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this
Section 8.1) against any and all losses, claims, expenses,
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,
14
regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses
(or actions in respect thereof) or settlements:
(1) arise out of or are based upon any
untrue statements or alleged untrue statements of
any material fact contained in the registration
statement, prospectus or statement 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 or necessary to make such statements
not misleading in light of the circumstances in
which they were made; provided that this agreement
to indemnify will 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 written information
furnished to the Company by the Fund, the Adviser
or CSI for use in the registration statement,
prospectus or statement of additional 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 Fund shares; or
(2) arise out of or as a result of
statements or representations by or on behalf of
the Company or wrongful conduct of the Company or
persons under its control, with respect to the
sale or distribution of the Contracts or Fund
shares; or
(3) arise out of any untrue statement
or alleged untrue statement of a material fact
contained in the Fund registration statement,
prospectus, statement of additional information or
sales literature or other promotional material of
the Fund (or amendment or supplement) or the
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make such statements 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 Fund 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 under the terms of this Agreement;
or
15
(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 will be in
addition to any liability that the Company otherwise
may have.
(b) No party will be entitled to indemnification
under Section 8.1(a) to the extent such loss, claim,
damage, liability or litigation is due to the willful
misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this
Agreement, or by reason of such party's reckless
disregard of its obligations or duties under this
Agreement by the party seeking indemnification.
(c) The Indemnified Parties promptly will notify the
Company of the commencement of any litigation,
proceedings, complaints or actions by regulatory
authorities against them in connection with the
issuance or sale of the Fund shares or the Contracts or
the operation of the Fund.
8.2. Indemnification By The Adviser, the Fund and CSI
(a) The Adviser, the Fund and CSI, in each case
solely to the extent relating to such party's
responsibilities hereunder, agree to indemnify and hold
harmless the Company and each person, if any, who
controls or is associated with the Company within the
meaning of such terms under the federal securities laws
and any director, trustee, officer, partner, employee
or agent of the foregoing (collectively, the
"Indemnified Parties" for purposes of this Section 8.2)
against any and all losses, claims, expenses, damages,
liabilities (including amounts paid in settlement with
the written consent of the Adviser) 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:
(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 Fund or sales literature
or other promotional material of the Fund (or any amend-
ment 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
16
fact required to be stated or necessary to make
such statements not misleading in light of the
circumstances in which they were made; provided
that this agreement to indemnify will 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 Adviser, CSI or the
Fund by or on behalf of the Company for use in
the registration statement, prospectus or
statement of additional information for the Fund
or in sales literature of the Fund (or any
amendment or supplement thereto) or otherwise for
use in connection with the sale of the Contracts
or Fund shares; or
(2) arise out of or as a result of
statements or representations or wrongful conduct
of the Adviser, the Fund or CSI or persons under
the control of the Adviser, the Fund or CSI
respectively, with respect to the sale of the Fund
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 or supplement
thereto), or the omission or alleged omission to
state therein a material fact required to be
stated or necessary to make such statement or
statements 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 written information
furnished to the Company by the Adviser, the Fund
or CSI or persons under the control of the
Adviser, the Fund or CSI; or
(4) arise as a result of any failure by the
Fund, the Adviser or CSI 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 Adviser, the Fund or CSI in
this Agreement, or arise out of or result from any
other material breach of this Agreement by the
Adviser the Fund or CSI;
17
except to the extent provided in Sections 8.2(b)
and 8.4 hereof. This indemnification will be in
addition to any liability that the Fund, Adviser or CSI
otherwise may have.
(b) No party will be entitled to indemnification under
Section 8.2(a) to the extent such loss, claim, damage,
liability or litigation is due to the willful
misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this
Agreement, or by reason of such party's reckless
disregard of its obligations or duties under this
Agreement by the party seeking indemnification.
(c) The Indemnified Parties will promptly notify the
Adviser, the Fund and CSI of the commencement of any
litigation, proceedings, complaints or actions by
regulatory authorities against them in connection with
the issuance or sale of the Contracts or the operation
of the 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) will 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 will 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 will
have been served upon such Indemnified Party (or after
such party will have received notice of such service on
any designated agent), but failure to notify the
Indemnifying Party of any such claim will not relieve the
Indemnifying Party from any liability which it may have to
the Indemnified Party against whom such action is brought
otherwise than on account of 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 will 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 will 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
18
connection with the defense thereof other than reasonable
costs of investigation, unless: (a) the Indemnifying Party
and the Indemnified Party will have mutually agreed to the
retention of such counsel; or (b) 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 Indemnifying Party will not be
liable for any settlement of any proceeding effected
without its written consent but if settled with such
consent or if there is 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 will be entitled to the benefits
of the indemnification contained in this Article VIII.
The indemnification provisions contained in this Article
VIII will survive any termination of this Agreement.
ARTICLE IX. APPLICABLE LAW
9.1. This Agreement will be construed and the provisions hereof
interpreted under and in accordance with the laws of the
State of Delaware.
9.2. This Agreement will be subject to the provisions of the
1933 Act, the 1934 Act and the 1940 Act, and the rules
and 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 Exemptive Order) and the terms
hereof will be interpreted and construed in accordance
therewith.
ARTICLE X. TERMINATION
10.1. This Agreement will terminate:
(a) at the option of any party, with or without cause,
with respect to some or all of the Designated
Portfolios, upon one hundred eighty (180) days' advance
written notice to the other parties or, if later, upon
receipt of any required exemptive relief or orders from
the SEC, unless otherwise agreed in a separate written
agreement Strong the parties; or
(b) at the option of the Company, upon receipt of the
Company's written notice by the other parties, with
respect to any Designated Portfolio if shares of the
Designated Portfolio are not reasonably available to
meet the requirements of the Contracts as determined in
good faith by the Company; or
19
(c) at the option of the Company, upon receipt of the
Company's written notice by the other parties, with
respect to any Designated Portfolio in the event any of
the Designated Portfolio's shares are not registered,
issued or sold in accordance with applicable state
and/or Federal law or such law precludes the use of
such shares as the underlying investment media of the
Contracts issued or to be issued by Company; or
(d) at the option of the Fund, upon receipt of the
Fund's written notice by the other parties, upon
institution of formal proceedings against the Company
by the NASD, the SEC, the insurance commission of any
state or any other regulatory body regarding the
Company's duties under this Agreement or related to the
sale of the Contracts, the administration of the
Contracts, the operation of the Account, or the
purchase of the Fund shares, provided that the Fund
determines in its sole judgment, exercised in good
faith, that any such proceeding would have a material
adverse effect on the Company's ability to perform its
obligations under this Agreement; or
(e) at the option of the Company, upon receipt of the
Company's written notice by the other parties, upon
institution of formal proceedings against the Fund,
Adviser or CSI by the NASD, the SEC, or any state
securities or insurance department or any other
regulatory body, provided that the Company determines
in its sole judgment, exercised in good faith, that any
such proceeding would have a material adverse effect on
the Fund's or CSI's ability to perform its obligations
under this Agreement; or
(f) at the option of the Company, upon receipt of the
Company's written notice by the other parties, if the
Fund 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 and in good faith believes
that the Fund may fail to so qualify; or
(g) at the option of the Company, upon receipt of the
Company's written notice by the other parties, with
respect to any Designated Portfolio if the Fund fails
to meet the diversification requirements specified in
Article VI hereof or if the Company reasonably and in
good faith believes the Fund may fail to meet such
requirements; or
(h) at the option of any party to this Agreement, upon
written notice to the other parties, upon another
party's material breach of any provision of this
Agreement which material breach is not cured within
thirty (30) days of said notice; or
20
(i) at the option of the Company, if the Company
determines in its sole judgment exercised in good
faith, that either the Fund, the Adviser or CSI 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,
such termination to be effective sixty (60) days' after
receipt by the other parties of written notice of the
election to terminate; or
(j) at the option of the Fund or CSI, if the Fund or
CSI respectively, determines in its sole judgment
exercised in good faith, 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 Fund or the Adviser,
such termination to be effective sixty (60) days' after
receipt by the other parties of written notice of the
election to terminate; or
(k) at the option of the Company or the Fund upon
receipt of any necessary regulatory approvals and/or
the vote of the contractowners having an interest in
the Account (or any subaccount) to substitute the
shares of another investment company for the
corresponding Designated Portfolio shares of the Fund
in accordance with the terms of the Contracts for which
those Designated Portfolio shares had been selected to
serve as the underlying investment media. The Company
will give sixty (60) days' prior written notice to the
Fund of the date of any proposed vote or other action
taken to replace the Fund's shares; or
(l) at the option of the Company or the Fund upon a
determination by a majority of the Fund Board, or a
majority of the disinterested Fund Board members, that
an irreconcilable material conflict exists among the
interests of: (1) all contractowners of variable
insurance products of all separate accounts; or (2) the
interests of the Participating Insurance Companies
investing in the Fund as set forth in Article VII of
this Agreement; or
(m) at the option of the Fund in the event any of the
Contracts are not issued or sold in accordance with
applicable federal and/or state law. Termination will
be effective immediately upon such occurrence without
notice.
21
10.2. Notice Requirement
No termination of this Agreement will be effective unless
and until the party terminating this Agreement gives prior
written notice to all other parties of its intent to
terminate, which notice will set forth the basis for the
termination.
10.3. Effect of Termination
Notwithstanding any termination of this Agreement, the
Fund and CSI will, at the option of the Company, continue
to make available additional shares of the Fund pursuant
to the terms and conditions of this Agreement, 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 will be permitted to
reallocate investments in the Portfolios (as in effect on
such date), redeem investments in the Portfolios and/or
invest in the Portfolios upon the making of additional
purchase payments under the Existing Contracts.
10.4. Surviving Provisions
Notwithstanding any termination of this Agreement, each
party's obligations under Article VIII to indemnify other
parties will survive and not be affected by any
termination of this Agreement. In addition, each party's
obligations under Section 12.7 will survive and not be
affected by any termination of this Agreement. Finally,
with respect to Existing Contracts, all provisions of this
Agreement also will survive and not be affected by any
termination of this Agreement.
ARTICLE XI. NOTICES
11.1. Any notice will be deemed duly given when sent by
registered or certified mail 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 in
writing to the other parties.
If to the Company: If to the Fund, the Adviser and/or CSI:
Golden American Life 000 Xxxxxxxxx Xxxxxx
Insurance Company Xxx Xxxx, XX 00000
0000 Xxxxxxxxx Xxxxxx Attn: Xxxxxx X. Xxxxx
Xxxxxxxxxx, XX 00000 Senior Vice President
Attn: Xxxxx X. Xxxxxxx
General Counsel
22
ARTICLE XII. MISCELLANEOUS
12.1. All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims
against the Fund as neither the directors, trustees,
officers, partners, employees, agents or shareholders
assume any personal liability for obligations entered into
on behalf of the Fund. No Portfolio or series of the Fund
will be liable for the obligations or liabilities of any
other Portfolio or series.
12.2. The Fund, the Adviser and CSI acknowledge that the
identities of the customers of the Company or any of its
affiliates (collectively the "Company Protected Parties" for
purposes of this Section 12.2), information maintained regarding
those customers, and all computer programs and procedures or
other information developed or used by the Company Protected
Parties or any of their employees or agents in connection with
the Company's performance of its duties under this Agreement are
the valuable property of the Company Protected Parties. The
Fund, the Adviser and CSI agree that if they come into possession
of any list or compilation of the identities of or other
information about the Company Protected Parties' customers, or
any other information or property of the Company Protected
Parties, other than such information as is publicly available or
as may be independently developed or compiled by the Fund, the
Adviser or CSI from information supplied to them by the Company
Protected Parties' customers who also maintain accounts directly
with the Fund, the Adviser or CSI, the Fund, the Adviser and CSI
will hold such information or property in confidence and refrain
from using, disclosing or distributing any of such information or
other property except: (a) with the Company's prior written
consent; or (b) as required by law or judicial process. The
Company acknowledges that the identities of the customers of the
Fund, the Adviser, CSI or any of their affiliates (collectively
the "Adviser Protected Parties" for purposes of this
Section 12.2), information maintained regarding those customers,
and all computer programs and procedures or other information
developed or used by the Adviser Protected Parties or any of
their employees or agents in connection with the Fund's, the
Adviser's or CSI's performance of their respective duties under
this Agreement are the valuable property of the Adviser Protected
Parties. The Company agrees that if it comes into possession of
any list or compilation of the identities of or other information
about the Adviser Protected Parties' customers, or any other
information or property of the Adviser Protected Parties, other
than such information as is publicly available or as may be
independently developed or compiled by the Company from
information supplied to them by the Adviser Protected Parties'
customers who also maintain accounts directly with the Company,
the Company will hold such information or property in confidence
and refrain from using, disclosing or distributing any of such
information or other property except: (a) with the Fund's, the
Adviser's or CSI's
23
prior written consent; or (b) as required by law or
judicial process. Each party acknowledges that any breach
of the agreements in this Section 12.2 would result in
immediate and irreparable harm to the other parties for
which there would be no adequate remedy at law and agree
that in the event of such a breach, the other parties will
be entitled to equitable relief by way of temporary and
permanent injunctions, as well as such other relief as any
court of competent jurisdiction deems appropriate.
12.3. 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.
12.4. This Agreement may be executed simultaneously in two or
more counterparts, each of which taken together will
constitute one and the same instrument.
12.5. If any provision of this Agreement will be held or made
invalid by a court decision, statute, rule or otherwise,
the remainder of the Agreement will not be affected
thereby.
12.6. This Agreement will not be assigned by any party hereto
without the prior written consent of all the parties.
12.7. Each party to this Agreement will maintain all records
required by law, including records detailing the services
it provides. Such records will be preserved, maintained
and made available to the extent required by law and in
accordance with the 1940 Act and the rules thereunder.
Each party to this Agreement will cooperate with each
other party and all appropriate governmental authorities
(including without limitation the SEC, the NASD and state
insurance regulators) and will 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.
Upon request by the Fund or CSI, the Company agrees to
promptly make copies or, if required, originals of all
records pertaining to the performance of services under
this Agreement available to the Fund or CSI, as the case
may be. The Fund agrees that the Company will have the
right to inspect, audit and copy all records pertaining to
the performance of services under this Agreement pursuant
to the requirements of any state insurance department.
Each party also agrees to promptly notify the other
parties if it experiences any difficulty in maintaining
the records in an accurate and complete manner. This
provision will survive termination of this Agreement.
24
12.8. 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 board 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.
12.9. The parties to this Agreement acknowledge and agree that
all liabilities of the Fund arising, directly or
indirectly, under this agreement, will be satisfied solely
out of the assets of the Fund and that no trustee,
officer, agent or holder of shares of beneficial interest
of the Fund will be personally liable for any such
liabilities.
12.10.The parties to this Agreement may amend the schedules to
this Agreement from time to time to reflect changes in or
relating to the Contracts, the Accounts or the Designated
Portfolios of the Fund or other applicable terms of this
Agreement.
12.11.The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and
all rights.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed in its name and behalf by its duly
authorized representative and its seal to be hereunder affixed
hereto as of the date specified below.
GOLDEN AMERICAN LIFE INSURANCE COMPANY
SEAL
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx, President and
Chief Executive Officer
ATTEST: By: ________________________________
Xxxxx X.Xxxxxxx, General Counsel
and Secretary
SEAL WARBURG, XXXXXX TRUST
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------
Title: Vice President & Secretary
--------------------------------------
25
SEAL WARBURG, XXXXXX COUNSELLORS, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------
Title: Vice President & Secretary
--------------------------------------
SEAL COUNSELLORS SECURITIES, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------
Title: Vice President & Secretary
--------------------------------------
ATTEST: /s/Xxxxxxx Xxxxxx
26
SCHEDULE 1
PARTICIPATION AGREEMENT
BY AND AMONG
GOLDEN AMERICAN LIFE INSURANCE COMPANY
AND
WARBURG, XXXXXX TRUST
AND
WARBURG, XXXXXX COUNSELLORS, INC.
AND
COUNSELLORS SECURITIES INC.
The following separate accounts of Golden American Life Insurance
Company are permitted in accordance with the provisions of this
Agreement to invest in Designated Portfolios of the Fund shown in
Schedule 2:
Golden American Life Insurance Company Separate Account A,
established July 14, 1988.
Golden American Life Insurance Company Separate Account B,
established July 14, 1988.
10/1, 1997
SCHEDULE 2
PARTICIPATION AGREEMENT
BY AND AMONG
GOLDEN AMERICAN LIFE INSURANCE COMPANY
WARBURG, XXXXXX TRUST
AND
WARBURG, XXXXXX COUNSELLORS, INC.
AND
COUNSELLORS SECURITIES INC.
The Separate Accounts shown on Schedule 1 may invest in the
following Designated Portfolios of the Warburg, Xxxxxx Trust:
International Equity Portfolio
10/1, 1997
