[ING LOGO] EXHIBIT h(4)
AMERICAS
U.S. LEGAL SERVICES
Xxxxx X. Xxxxxx
Counsel
(000) 000-0000
Fax: (000)000-0000
October 29, 2003
ING Funds Services, LLC
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxxx X. Xxxxxxxx
RE: ADMINISTRATIVE AND SHAREHOLDERS SERVICES AGREEMENT BETWEEN
ING FUNDS SERVICES, LLC AND GOLDEN AMERICAN LIFE INSURANCE COMPANY (THE
"AGREEMENT")
Dear Xx. Xxxxxxxx:
Please be advised that on January 1, 2004, Golden American Life Insurance
Company ("Golden American"), currently a Delaware insurance company will be
renamed ING USA Annuity and Life Insurance Company ("ING USA") and will become
an Iowa insurance company. Effective on the same date, Golden American Separate
Account B will be renamed ING USA Annuity and Life Insurance Company Separate
Account B.
Please send all future notices required under the Agreement(s) to:
ING USA Annuity and Life Insurance Company
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Counsel
Phone: (000)000-0000
Fax: (000)000-0000
If you have any questions or comments, please do not hesitate to give me a call
at the number above.
Sincerely,
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
West Xxxxxxx Site ING North America Insurance Corporation
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Administrative and Shareholder Services Agreement
This Agreement is made as of the 1st day of May 2001, by and between ING Funds
Services, LLC (formerly known as ING Pilgrim Group, LLC) (the "Administrator")
and Golden American Life Insurance Company ("Company"), collectively, the
"Parties."
WHEREAS, the Administrator serves as the Administrator for ING Variable Products
Trust (formerly known as Pilgrim Variable Products Trust) ("Trust") which
currently consists of 16 separate series (the "Portfolios"); and
WHEREAS, the Company has entered into a Participation Agreement, dated May 1st,
2001, with the Trust (a "Participation Agreement") pursuant to which the Trust
will make shares of each Portfolio listed from time to time on Schedule A of the
Agreement available to the Company at net asset value and with no sales charges,
subject to the terms of the Participation Agreement, to fund benefits under
variable life insurance policies and variable annuity Contracts (each, a
"Contract," and collectively, the "Contracts") to be issued by the Company; and
WHEREAS, the Participation Agreement provides that the Trust will bear the costs
of preparing and filing with the Securities and Exchange Commission the Trust's
prospectus, registration statement, proxy materials and reports, setting the
prospectus and shareholder reports in type, setting in type and printing the
proxy materials, and preparing all statements and notices required by any
federal or state law to be, in each case as may reasonably be necessary for the
performance of its obligations under the Participation Agreement (collectively,
the "Trust Materials"), and providing the Company with copies of the Trust
Materials; and
WHEREAS, the Participation Agreement provides that the Trust shall pay for the
cost of typesetting, printing and distributing periodic fund reports to
shareholders, prospectuses and supplements thereto, statements of additional
information, proxy statements and other materials that are required by law to be
sent to existing owners of Contracts ("Contract owners"), as well as the cost of
distributing such materials; and
WHEREAS, the Participation Agreement makes no provision for which party shall
incur various administrative expenses in connection with the servicing of
Contract owners or Participants who have allocated Contract value to a
Portfolio, including, but not limited to, responding to various Contract owner
inquiries regarding a Portfolio; and
WHEREAS, ING Investments, LLC (formerly known as ING Pilgrim Investments, LLC)
("ING Investments"), investment adviser to the Portfolios and a subsidiary of
the Administrator, has entered into an Expense Limitation Agreement with the
Trust, a copy of which has been provided to the Company, and which may be
renewed or amended from time to time ("Expense Limitation Agreement") under
which ING Investments has agreed to limit the expenses of all of the Portfolios;
WHEREAS, the Parties wish to allocate expenses in a manner that is fair and
equitable, consistent with the best interests of Contract owners and
participants, and that does not entail the expense and inconvenience of
separately identifying and accounting for each item of Trust expenses;
NOW, THEREFORE, in consideration of the mutual benefits and promises contained
herein, the Parties hereto agree as follows:
I. Services Provided:
The Company agrees to provide services including, but not limited to:
a) delivering and responding to inquiries respecting Trust
prospectuses, Statements of Additional Information, reports,
notices, proxies and proxy statements and other information
respecting the Portfolios (but not including services paid for
by the Trust);
b) facilitating the tabulation of Contract owners' and
participants' votes in the event of a meeting of Trust
shareholders;
c) providing and administering Contract features for the benefit
of Contract owners and participants participating in the
Trust, including fund transfers, dollar cost averaging, asset
allocation, portfolio rebalancing, earnings sweep, and pre-
authorized deposits and withdrawals;
d) responding to inquiries from Contract owners and participants
using one or more of the Portfolios as an investment vehicle
regarding the services performed by the Company as they relate
to the Trust or its Portfolios;
e) teleservicing support in connection with the Portfolios;
f) maintenance of Company records reflecting shares purchased and
redeemed and share balances held by separate accounts of the
Company and the conveyance of that information to the Trust,
its transfer agent, or the Administrator as may be reasonably
requested;
g) facilitating the printing and mailing of reports to
shareholders and other shareholder communications from the
Trust as may be required pursuant to the Participation
Agreement;
h) responding to inquiries from Contract owners or participants
concerning the Trust and its operations; and
i) providing such similar services as the Administrator or Trust
may reasonably request to the extent permitted or required
under applicable statutes, rules and regulations.
II. Expense Allocations:
Subject to Section III, the Company or its affiliates shall bear the
costs of:
a) printing and distributing all Trust Materials to be
distributed to prospective Contract owners as discussed in the
Participation Agreement as being distributed at the Company's
expense;
b) printing and distributing all sales literature or promotional
material developed by the Company or its affiliates and
relating to the Contracts; and
c) servicing Contract owners who have allocated Contract value to
a Portfolio, which servicing shall include, but is not limited
to, the items listed above
III. Payment of Expenses:
a) The Administrator shall pay to the Company a quarterly fee
("Service Fee") equal to a percentage of the average daily
cumulative new assets due to investment in a class of the
Portfolio attributable to Contracts issued by the Company at
the annual rates shown in the attached Schedule A. Such
Service Fee shall be calculated and paid quarterly.
b) Administrator represents that under the terms of the Expense
Limitation Agreement, ING Investments has agreed that to the
extent that ordinary operating expenses incurred by a class of
a Portfolio in any fiscal year, including, but not limited to,
investment management fees payable to ING Investments, but
excluding interest, taxes, brokerage commissions and
extraordinary expenses, exceed the operating expense limits
specified in that agreement (the "Excess Amount"), ING
Investments shall waive or reduce its fee and/or promptly
remit to the Portfolio an amount that is equal to the Excess
Amount.
In the event that ING Investments pays Administrator an Excess
Amount under the terms of the Expense Limitation Agreement,
Company agrees that any Service Fee owed by Administrator to
the Company pursuant to Section III(a) above shall be reduced
by an amount that is equal to the Company's prorata portion of
50% of such Excess Amount. However, any reduction of the
Service Fee shall not exceed an amount equal to an annual rate
of .04% calculated in the same manner as outlined in (a) and
shall be calculated as an offset against any amounts payable,
under (a) quarterly. In the event that the expense offset
hereunder exceeds the revenue owing under (a), it shall not be
charged by Administrator for that month, Administrator agrees
that any recoupment of the Excess Amount by ING Investments
under the terms of the Expense Limitation agreement shall be
paid to the Company commensurate with Company's share of the
Excess Amount described above. Administrator shall calculate
amounts owing quarterly and provide a copy of that calculation
to Company.
c) For purposes of calculating the amount of the Service Fee as
described in Section III(a) above, the "average daily
cumulative new assets" of a class of a Portfolio for any
calendar quarter shall be equal to the quotient produced by
dividing (i) the
sum of the net assets of such class of a Portfolio, for each
calendar month as determined in accordance with the procedures
established from time to time by or under the direction of the
Trust's Board of Trustees for each business day of such month,
by (ii) the number of such business days;
d) On a quarterly basis, the Company will provide Administrator
with reports for each calendar month indicating the net assets
in each class of a Portfolio at the end of the month
attributable to Contracts issued by the Company.
e) The Administrator will calculate the Service Fee contemplated
by this Section and will make such payment, as appropriate, to
the Company within thirty (30) days after the last business
day of each calendar quarter thereafter. Each payment will be
accompanied by a statement showing the calculation of the
Service Fee payable by the Administrator, if any, and such
other supporting data as may be reasonably requested by the
Company.
f) The Company agrees to make appropriate disclosure in its
prospectus and registration statement as to the payments for
services provided pursuant to this Agreement as required by
the federal securities laws or other applicable law.
g) From time to time, the Parties hereto shall review the Service
Fee to determine whether it reasonably approximates the
incurred and anticipated costs, over time, of the Company in
connection with its duties hereunder. The Parties agree to
negotiate in good faith any change to the Service Fee proposed
by one of the Parties in good faith.
h) The Parties agree that the Administrator's payments to the
Company are for administrative services only and do not
constitute payment in any manner for investment advisory
services or costs of distribution.
i) This Agreement shall not modify any of the provisions of the
Participation Agreement, but shall supplement those
provisions.
IV. Term of Agreement:
This Agreement shall continue in effect for so long as the Company or
its successor(s) in interest, or any affiliate thereof, continues to
hold shares of the Trust or its Portfolios, and continues to perform in
a similar capacity for the Company and Trust.
V. Indemnification:
a) The Company agrees to indemnify and hold harmless the
Administrator and its officers and directors, from any and all
loss, liability and expense resulting from the gross
negligence or willful wrongful act of the Company under this
Agreement, except to the extent such loss, liability or
expense is the result of the willful misfeasance, bad faith or
gross negligence of the Administrator in the performance of
its duties, or by reason of the reckless disregard of its
obligations and duties under this Agreement.
b) The Administrator agrees to indemnify and hold harmless the
Company and its officers and directors from any and all loss,
liability and expense resulting from the gross negligence or
willful wrongful act of the Administrator under this
Agreement, except to the extent such loss, liability or
expense is the result of the willful misfeasance, bad faith or
gross negligence of the Company in the performance of its
duties, or by reason of the reckless disregard of its
obligations and duties under this Agreement.
VI. Amendment
This Agreement may be amended only upon mutual agreement of the Parties
hereto in writing.
VII. Standard of Care
The Parties shall exercise reasonable care in the performance of their
duties under this Agreement.
VIII. Confidentiality
The terms of this arrangement will be held confidential by each Party
except to the extent that either Party or the Trust may deem it
necessary to disclose this arrangement.
IX. Notices:
Notices and communications required or permitted hereby will be given
to the following persons at the following addresses, or such other
persons as the Party receiving such notices or communications may
subsequently direct in writing:
If to the Trust:
ING Variable Products Trust
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxxxx X. Xxxxxxxx
If to the Administrator:
ING Funds Services, LLC.
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxxxx X. Xxxxxxxx
If to the Company:
Golden American Life Insurance Company
0000 Xxx xxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx, Chief Counsel
X. Applicable Law:
Except insofar as the Investment Company Act of 1940 or other federal
laws and regulations may be controlling, this Agreement will be
construed and the provisions hereof interpreted under and in accordance
with Delaware law, without regard for that state's principles of
conflict of laws.
XI. Execution in Counterparts:
This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
XII. Severability:
If any provision of this Agreement is held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement
will not be affected thereby.
XIII. Cumulative Rights:
The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, that the Parties are entitled to
under federal and state laws.
XIV. Headings
The headings used in this Agreement are for purposes of reference only
and shall not limit or define, the meaning of the provisions of this
Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers signing below.
ING FUNDS SERVICES, LLC GOLDEN AMERICAN LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxxx X. Xxxxxxxx By: Xxxxxxxx X. Xxxxx
--------------------------- ----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx Name: Xxxxxxxx X. Xxxxx
CLASS S
(INCLUDES 4bp
REDUCTION) PORTFOLIOS
-------------------------------------------------------------------
0.465% ING VP MagnaCap Portfolio
0.24% ING VP Research Enhanced Index Portfolio
0.465% ING VP Growth Opportunities Portfolio
0.465% ING XX XxxXxx Opportunities Portfolio
0.165% ING VP Growth + Value Portfolio
0.465% ING VP SmallCap Opportunities Portfolio
0.465% ING VP International Value Portfolio
0.465% ING VP High Yield Bond Portfolio
0.465% ING VP LargeCap Growth Portfolio
0.465% ING VP Financial Services Portfolio
0.465% ING VP Convertible Portfolio
0.465% ING VP Worldwide Growth Portfolio
Schedule dated: May 1, 2001
