SECOND AMENDMENT
BANKERS TRUST COMPANY
(U.S. CUSTODY)
This Second Amendment ("Second Amendment") dated as of May 4, 1999,
between Golden American Life Insurance Company (the "Customer") and
Bankers Trust Company (the "Custodian");
WITNESSETH:
WHEREAS, The Customer and Custodian have entered into a Custody
Agreement dated February 13, 1995 (the "Agreement") and a First
Amendment dated May 13, 1996 (the "Amendment"), and
WHEREAS, the Customer and Custodian desire to continue the
Agreement as amended on the same terms and conditions as existing as
of the date hereof, notwithstanding that the Customer and Custodian
will no longer be affiliated entities upon the closing of that Stock
Purchase Agreement dated May 3, 1996 between Whitewood Properties
Corp. and Equitable of Iowa Companies ("Stock Purchase Agreement");
NOT, THEREFORE, THE parties hereto hereby agree as follows:
1. Continuation of Agreement. Effective as of the Closing Date (as
defined in the Stock Purchase Agreement), the Agreement, as amended
by the Amendment, shall continue upon the same terms and conditions;
provided, however, that Customer may terminate the Agreement upon
thirty (30) days notice to Custodian.
2. Reference to and Effect Upon the Agreement. Except as specially
amended and agreed to above, the terms and provisions of the
Agreement and the amendment are hereby ratified and confirmed and
shall remain in full force and effect.
3. Acknowledgement of Applicability of Stock Purchase Agreement.
The Customer and Custodian hereby acknowledge that this Second
Amendment is being entered into pursuant to Section 5.13 of the Stock
Purchase Agreement, and each agree to undertake such further actions
as may be necessary to carry out and effectuate the purposes of
Section 5.13 of the Stock Purchase Agreement as related to the
services to be provided pursuant to the Agreement.
IN WITNESS WHEREOF, the parties hereby have caused this
Second Amendment to be duly executed by their respective
authorized officers as of the date appearing in the first
paragraph.
BANKERS TRUST COMPANY
By: ________________________/s/
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
GOLDEN AMERICAN LIFE INSURANCE COMPANY
By: _______________________/s/
Name: Xxxx Xxx Xxxxxxxxx
Title: Senior Vice President & Treasurer
By: ________________________/s/
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President
FIRST AMENDMENT
This FIRST AMENDMENT ("Amendment") dated as of May 13, 1996
between GOLDEN AMERICAN LIFE INSURANCE COMPANY (the
"Customer") and BANKERS TRUST COMPANY (the "Custodian");
WITNESSETH:
WHEREAS, the Customer and the Custodian have entered into a
Custody Agreement dated as of February 13, 1996 (the
"Agreement"); and
WHEREAS, the Customer and the Custodian have agreed to amend
the Agreement on the terms and conditions herein set forth;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Amendment to Agreement. Effective as of the date
hereof, the Agreement is hereby amended by inserting the
following into the first paragraph of Section 9, after the
sixth sentence thereof:
The Custodian shall indemnify the Customer for any loss
of Securities in the Custodian's custody to the extent
that such loss was caused by the negligence or
dishonesty of the Custodian. In the event of a loss of
Securities for which the Custodian is obligated to
indemnify the Customer, the Custodian shall either
replace the Securities or the value of the Securities
together with the value of any loss of rights or
privileges resulting from said loss of Securities.
2. Reference to and Effect Upon the Agreement. Except as
specifically amended above, the terms and provisions of the
Agreement are hereby ratified and confirmed and shall remain
in full force and effect.
3. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of
New York.
4. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall
not constitute a part of this Amendment for any other
purposes.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized
officers as of the date appearing in the first paragraph
above.
BANKERS TRUST COMPANY
By: ____________________/s/
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
GOLDEN AMERICAN LIFE INSURANCE
By: /s/
Name: Xxxx Xxx Xxxxxxxxx
Title: Senior Vice President &
Treasurer
By: /s/
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice
President & Asst. Sec.
BANKERS TRUST COMPANY
CUSTODIAN AGREEMENT
US CUSTODY
AGREEMENT dated as of February 13, 1995 between BANKERS
TRUST COMPANY (the "Custodian") and Golden American Life
Insurance Company (the "Customer").
1. Employment of Custodian. The Customer hereby employs
the Custodian as custodian of all assets of the Customer
which are delivered to and accepted by the Custodian (the
"Property") pursuant to the terms and conditions set forth
herein. Without limitations, such Property shall include
stocks and other equity interests of every type, evidences
of indebtedness, other instruments representing same or
rights or obligations to receive, purchase, deliver or sell
same and other non-cash investment property of the Customer
that is acceptable for deposit ("Securities") and cash from
whatever source and in whatever currency ("Cash"). The
Custodian shall not be responsible for any property of the
Customer held or received by the Customer or others and not
delivered to and accepted by the Custodian or any of its
Subcustodians (as that term is defined in Section 4 below)
as hereinafter provided.
2. Custody Account. The Custodian agrees to establish and
maintain one or more custody accounts on its books in the
name of the Customer (the "Account") for any and all
Property consisting of Securities from time to time received
and accepted by the Custodian or any of its Subcustodians
for the account of the Customer. Any and all Property
consisting of Cash from time to time received and accepted
by the Custodian or any of its Subcustodians for the account
of the Customer shall be credited to one or more demand
deposit accounts or custody cash accounts of the Customer
(the "Cash Account") on the books of the Custodian. The
Custodian shall have the right, in its sole discretion, to
refuse to accept any Property that is not in proper form for
deposit for any reason. The Customer acknowledges its
responsibility as a principal for all of its obligations to
the Custodian arising under or in connection with this
Agreement, notwithstanding that it may be acting on behalf
of other persons, and warrants its authority to deposit in
the Account or Cash Account, as the case may be, any
Property received therefor by the Custodian or its
Subcustodian and to give, and authorize others to give,
instructions relative thereto pursuant to the terms of this
Agreement. The Custodian may deliver securities of the same
class in place of those deposited in the Account. The
Customer further agrees that the Custodian shall not be
subject to, nor shall its rights and obligations under this
Agreement or with respect to the Account or the Cash
Account, as the case may be, be affected by, any agreement
between the Customer and any other person.
The Custodian shall hold, keep safe and protect as
custodian for the Account, on behalf of the Customer, all
Property in the Account and the Cash Account. Subject to
the provisions of the next paragraph relating to Securities
issued outside of the United States and collections of
income in a currency other than United States dollars, all
transactions involving the Property shall be executed or
settled solely in accordance with Instructions (as that
terms is defined in Section 8), except that until the
Custodian receives Instructions to the contrary, the
Custodian will:
(a) collect all interest and dividends and all other income
and payments, whether paid in cash or in kind, on the
Property, as same become payable and credit the same to the
Cash Account;
(b) present for payment all Securities held in the Account
which are called, redeemed or retired or otherwise become
payable and all coupons and other income items which call
for payment upon presentation to the extent that the
Custodian is actually aware of such opportunities and credit
the cash received to the Cash Account;
(c) (I) exchange Securities where the exchange is purely
ministerial (including, without limitation, the exchange of
temporary securities for those in definitive form and the
exchange of warrants, or other documents of entitlement of
securities, for the Securities themselves); and (ii) when
notification of a tender or exchange offer (other than
ministerial exchanges described in (I) above) is received
for the Account, endeavor to receive Instructions, provided
that if such Instructions are not received in time for the
Custodian to take timely action, no action shall be taken
with respect thereto;
(d) whenever notification of a rights entitlement or a
fractional interest resulting from a rights issue, stock
dividend or stock split is received for the Account and such
rights entitlement or fractional interest bears and
expiration date, if after endeavoring to obtain Instructions
such Instructions are not received in time for the Custodian
to take timely action, sell in the discretion of the
Custodian (which sale the Customer hereby authorizes the
Custodian to make) such rights entitlement or fractional
interest and credit the Cash Account with the net proceeds
of such sale:
(e) execute in the Customer's name for the Account,
whenever the Custodian deems it appropriate, such ownership
and other certificates as may be required to obtain the
payment of income from the Property; and
(f) appoint brokers and agents for any of the ministerial
transaction involving the Securities described in (a) - (e),
including, without limitation, affiliates of the Custodian
or any Subcustodian.
Notwithstanding the foregoing and any Instructions
received in connection therewith, with respect to Securities
issued outside of the United States, the Custodian shall not
assume any responsibility with respect to coupon payments,
redemptions, exchanges, or similar matters affecting such
Securities, and its duties hereunder shall be limited to the
safekeeping of such Securities only. Collections of income
in foreign currency are, to the extent possible, to be
converted into United States dollars as soon as practicable,
and in effecting such conversions the Custodian may use such
methods or agencies as it may see fit, including the
facilities of its own foreign division at customary rates.
The Custodian shall deliver, subject to Section 7
below, any and all Property in the Account in accordance
with Instructions and, in connection therewith, the Customer
will accept delivery of Securities of the same class and
denomination in place of those contained in the Account.
3. Records, Ownership of Property and Statements. The
ownership of the Property, whether held by the Custodian or
a Subcustodian or in a Securities System (as that term is
defined in Section 4) in which the Custodian participates,
shall be clearly recorded on the Custodian's books as
belonging to the Account or the Cash Account and not for the
Custodian's own interest. The Custodian shall keep accurate
and detailed accounts of all investments, receipts,
disbursements and other transactions for the Account and the
Cash Account. All accounts, books and records of the
Custodian relating thereto shall be open, upon reasonable
notice from the Customer to the Custodian, to inspection and
audit at all reasonable times during normal business hours
by any person designated by the Customer.
Subject to the election of the Customer as hereinafter
provided, the Custodian will supply to the Customer from
time to time, as mutually agreed upon, a statement in
respect to any Property in the Account or the Cash Account
held by the Custodian or by a Subcustodian. In the absence
of the filing in writing with the Custodian by the Customer
of exceptions or objections to any such statement within
sixty (60) days of the mailing thereof, the Customer shall
be deemed to have approved such statement; and in such case
or upon written approval of the Customer of any such
statement, such statement shall be presumed to be correct
for all purposes with respect to all information set forth
therein. In addition, the Customer understands that it has
the option to elect to participate in the Custodian's
electronic on-line service and communication system which
can provide the Customer, on a daily basis, with the ability
to view on-line or to print on hard copy (the "Electronic On-
Line System"): (I) all transactions involving the delivery
in and out of the Account on a free or payment basis; (ii)
payments of principal and interest or dividends; (iii)
pending transactions and fails; and (iv) schedules of
Securities in the Account plus the market values thereof.
To the extent that the electronic On-Line system shall
include market values of Securities in the Account, the
Customer hereby acknowledges that the Custodian now obtains
and will in the future obtain information on such values
from outside sources (presently Mellon Invest Data
Corporation and Telstat) which the Custodian deems to be
reliable, confirms that the Custodian does not verify nor
represent or warrant either the accuracy or the completeness
of any such information furnished or transacted by or
through the Electronic On-Line System, and the Custodian
shall be without liability in selecting and using such
sources and furnishing any information derived therefrom.
4. Subcustodians, Securities Systems and Foreign
Subcustodians.
(a) The Customer authorizes and instructs the Custodian to
hold the Property in the Account in custody accounts which
have been established by the Custodian with (a) one of its
U.S. branches or another U.S. bank or trust company or
branch thereof located in the U.S. (individually, a
"Subcustodian"), or (b) a U.S. securities depository or
clearing agency or system in which the Custodian or a
Subcustodian participates (individually, a "Securities
System"). The Custodian shall select in its sole discretion
the entity or entities in the custody of which any of the
Securities may be so maintained or with which any Cash may
be so deposited. The Custodian may, at any time in its
discretion, upon written notification to the Customer,
terminate the employment of any Subcustodian or Securities
System.
(b) In the event that the Customer invests in a Security
for which the principal trading market is a country other
than the United States or which is to be acquired or
presented for payment in a country other than the United
States, the Custodian will use reasonable effort to appoint
a subcustodian in the appropriate jurisdiction ("Foreign
Subcustodian"). The Foreign Subcustodian may be a banking
institution, securities depository or securities clearing
system organized under the laws of a country other than the
United States.
5. Holding of Securities, Nominees, etc. Securities in
the Account which are held by the Custodian or any
Subcustodian may be held by such entity in the name of the
Customer, in the Custodian's or Subcustodian's own name, in
the name of the Custodian's or Subcustodian's nominee, or in
bearer form. Securities which are held by a Subcustodian or
are eligible for deposit in a Securities System as provided
above may be maintained with the Subcustodian or the
Securities System in an account for the Custodian's or
Subcustodian's customers. The Custodian or Subcustodian, as
the case may be, may combine certificates representing
Securities held in the Account with certificates of the same
issue held by it as fiduciary or as a custodian. In the
event that any Securities in the name of the Custodian or
its nominee or held by one of its Subcustodians and
registered in the name of such Subcustodian or its nominee
are called for partial redemption by the issuer of such
Security, the Custodian may, subject tot he rules or
regulations pertaining to allocation of any securities
depository in which such Securities have been deposited,
allot, or cause to be allotted, the called portion to the
respective beneficial holders of such class of security in
any manner the Custodian deems to be fair and equitable.
13. Notices. Except as otherwise provided in this Agreement, all
requests, demands or other communications between the parties or notices in
connection herewith (a) shall be in writing, hand delivered or sent by
registered mail, telex or facsimile addressed, if to the Customer:
GOLDEN AMERICAN LIFE INSURANCE COMPANY
0000 XXXXXXXXX XXXXXX, XXXXX 000
XXXXXXXXXX, XX 00000
TELEPHONE #: 000-000-0000
FACSIMILE #: 000-000-0000
and if to the Custodian, to
BANKERS TRUST COMPANY
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Fax: 000-000-0000
Telex:
Answerback:
or in the case to such other address as shall have been furnished to the
receiving party pursuant to the provisions hereof and (b) shall be deemed
effective when received, or, in the case of telex, when the proper number
and acknowledged by a proper answerback.
14. Security for Payment. To secure payment of all fees to Custodian
hereunder, including but not limited to amounts payable pursuant to the
indemnification provisions, the Customer hereby grants to Custodian a coninuing
security interest in and right of setoff against the Account, the Cash Account
and all Property held therein from time to time in the full amount of such
obligations. Should the Customer fail to pay promptly any amounts owed
hereunder, Custodian shall be entitled to use available Cash in the Cash
Account, and to dispose of Securities in the Account as is necessary. In any
such case and without limiting the foregoing, the Custodian shall be entitled
to take such other action(s) or exercise such other options, poewers and rights
as the Custodian now or hereafter has as a secured creditor under the New York
Uniform Commercial Code or any other applicable law.
15. Governing Law and Successors and Assigns. This Agreement shall be
governed by the law of the State of New York and shall not be assignable by
either party, but shall bind the successors in interest of the Customer and the
Custodian.
16. Publicity. Customer shall furnish to Custodian at its office
referred to in Section 13 above, prior to any distribution thereof, copies of
any material prepared for distribution to any persons who are not parties
hereto that refer in any way to Custodian. Customer shall not distribute or
permit the distribution of such materials if Custodian reasonably objects
in writing within ten (10) business days (or such other time as may be mutually
agreed) after receipt thereof. The provisions of this Section shall survive
the termination of this Agreement.
17. Submissions to Jurisdiction. To the extent, if any, to which the
Customer nor any of its respective properties may be deemed to have or hereafter
to acquire immunity, on the ground of soveriegnty or otherwise, from any
judicial process or proceeding to enforce this Agreement or to collect amounts
due hereunder (including, without limitation, attachment proceedinngs to
judgement or in aid of execution) in any jurisdiction, the Customer hereby
waives such immunity and aggrees not to claim the same. Any suit, in action
or proceeding arising out of this Agreement may be instituted
