FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made as of the 16th day of July 2001, among XXXXXXX
SERIES TRUST ("Fund"), an open-end management investment company organized as a
Massachusetts business trust, XXXXXXX ADVISORS, INC. ("Advisor"), the Fund's
investment advisor and administrator, and GOLDEN AMERICAN LIFE INSURANCE COMPANY
("Company"), a life insurance company organized under the laws of the state of
Delaware, on its own behalf and on behalf of each segregated asset account of
the Company set forth in Schedule A as attached hereto, as such Schedule A may
be amended from time to time ("Accounts").
WHEREAS, the Fund is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company; and
WHEREAS, the Fund is organized as a series fund and has established a
number of distinct series of shares of beneficial interest ("Series"), which
correspond to distinct portfolios of investments; and
WHEREAS, the Fund acts as an investment vehicle for separate accounts
established for variable life insurance policies and variable annuity contracts
("Contracts") to be offered by insurance companies that have entered into
participation agreements with the Fund ("Participating Insurance Companies");
and
WHEREAS, the Advisor is registered as an investment advisor under the
Investment Advisers Act of 1940, as amended, a broker-dealer under the
Securities Exchange Act of 1934, as amended ("1934 Act"), and is a member in
good standing of the National Association of Securities Dealers, Inc. ("NASD");
and
WHEREAS, the Series of the Fund offered by the Fund to the Company and
the Accounts are set forth on Schedule B attached hereto, as such Schedule B may
be amended from time to time; and
WHEREAS, the Fund has obtained an order ("Exemptive Order") from the
Securities and Exchange Commission ("SEC") granting Participating Insurance
Companies and their separate accounts exemptions from the provisions of sections
9(a), 13(a), 15(a) and 15(b) of 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 and variable life insurance separate
accounts of both affiliated and unaffiliated life insurance companies and
certain qualified pension and retirement plans ("Qualified Plans"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase Class I shares ("Shares") of one or
more of the Series on behalf of the Accounts to fund the Contracts, and the Fund
intends to sell such Shares to the relevant Accounts at such Shares' net asset
value;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, it is agreed between the parties as follows:
1. Sale of Shares. The Fund agrees to make Shares available for
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purchase by the Accounts or the Company or its affiliates on behalf of the
Accounts at the Shares' net asset value as computed in accordance with the
Fund's current prospectus and statement of additional information, as amended or
supplemented from time to time under the Securities Act of 1933, as amended
("1933 Act") and the 1940 Act ("Fund Registration Statement"). Purchases of
Shares will be made in accordance with the provisions of the Fund Registration
Statement and the operational procedures mutually agreed to in writing by the
Advisor or the Fund and the Company from time to time. The Fund may refuse to
sell Shares of any Series to any person or may suspend or terminate the offering
of Shares of any Series if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the trustees of
the Fund, necessary in the best interests of the shareholders of any Series.
2. Redemption of Shares. The Fund will redeem Shares when requested by
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an Account or the Company or its affiliates on behalf of the Account at the
Shares' net asset value (as computed in accordance with the Fund Registration
Statement) in accordance with the provisions of the Fund Registration Statement
and the operational procedures mutually agreed to by the Advisor or the Fund and
the Company from time to time.
3. Acceptance of Orders. The Fund shall accept purchase and redemption
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orders resulting from investments in and payments under the Contracts on each
Business Day, provided that such orders are received by the Advisor or the Fund
prior to 9:00 a.m., Eastern time, on such Business Day and reflect instructions
received by the Company from Contract holders in good order prior to the time
the net asset value of the Series is calculated in accordance with the Fund
Registration Statement on the prior Business Day. Notwithstanding the foregoing,
the Company shall use its best efforts to provide the Advisor or the Fund with
such orders by 7:30 a.m. on the Business Day following the Business Day on which
instructions are so received by the Company. Orders reflecting instructions
received by the Company in good order after the time the net asset value of the
Series is calculated will not be deemed received until the next succeeding
Business Day. The Company acts as the agent of the Fund and the Advisor for the
limited purpose of accepting purchase and redemption instructions from Contract
holders. The Advisor and the Fund may reject purchase and redemption orders that
are not in proper form as mutually agreed to by the Advisor and the Company from
time to time.
4. Payment for Purchases and Redemptions. Purchase orders shall be paid
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for in federal funds transmitted by wire no later than the Business Day that the
Fund receives notice of the order. The Fund shall use its best efforts to send
redemption proceeds in federal funds transmitted by wire no later than the next
Business Day after the Fund received notice of the order, unless doing so would
cause the Fund to dispose of portfolio securities or otherwise incur additional
costs. In any event, the Fund will wire proceeds of redemption orders to the
Company within the period required under the 1940 Act or the rules, orders or
regulations thereunder.
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5. Limitation on Sales of Shares. The Fund agrees that its Shares will
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be sold only to Participating Insurance Companies and their separate accounts
and/or to Qualified Plans, all in accordance with Section 817(h) of the Internal
Revenue Code of 1986, as amended ("Code") and applicable Treasury Regulations.
No shares of any Series will be sold directly to the general public. The Company
agrees that Shares will be used only for the purposes of funding the Contracts
and Accounts listed in Schedule A, as amended from time to time.
6. Book Entry. Issuance and transfer of Shares will be by book entry
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only. Share certificates will not be issued to the Company or any Account.
Shares ordered from the Fund will be recorded in the appropriate title for
each Account.
7. Notice of Dividends and Distributions. The Fund will furnish prompt
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notice to the Company of any income, dividends or capital gain distribution
payable on Shares. The Company hereby elects to receive all such income
dividends and capital gain distributions payable on Shares in additional Shares
of the same Series. The Fund shall notify the Company of the number of Shares so
issued as payment of such dividends and distributions.
8. Company Reports. The Company agrees to provide the Fund or its
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designee on a daily basis with the amount of shares of each Series purchased and
sold by each owner of the Contracts (and information identifying each Contract
owner's investment executive) and such other information concerning transactions
in shares of the Fund by the Contract owners as the Fund shall reasonably
request.
9. Advertising Materials; Filed Documents.
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a) Advertising and sales literature with respect to the Fund prepared
by the Company or its agents for use in marketing the Contracts will be
submitted to the Fund or its designee for review before such material is used
and submitted to any regulatory body for review. No such material shall be used
if the Fund or its designee reasonably object to such use in writing,
transmitted by facsimile or other similar means within five business days after
receipt of such material.
b) The Fund shall provide the Company with a reasonable number of
copies of its registration statement, prospectuses, statements of additional
information, annual and semi-annual reports, proxy statements and all amendments
or supplements to any of the above promptly after the filing of such document
with the SEC or other regulatory body. At the request of the Advisor or the
Fund, the Company shall provide at least one copy of its registration statement,
prospectuses, statements of additional information, annual and semi-annual
reports, proxy statements and all amendments or supplements to any of the above
as it relates to the Contracts promptly after the filing of such document with
the SEC or other regulatory body.
10. Uniform Application of Pass-Through Voting and Conflicts of
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Interest. The Fund agrees that all Participating Insurance Companies shall have
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the same obligations and responsibilities regarding pass-through voting and
conflicts of interest as the Company has under this Agreement.
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11. Pass-Through Voting. With respect to Contracts and Accounts that
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are subject to the 1940 Act, so long as and to the extent that the SEC or SEC
staff interprets the 1940 Act to require pass-through voting privileges to
Contract owners (including, for purposes of this section, policy owners whose
cash values are invested in Shares through the Accounts), the Company will
provide pass-through voting privileges to Contract owners. The Fund shall
require all Participating Insurance Companies to calculate voting privileges in
the same manner and the Company will be responsible for assuring that the
Accounts calculate voting privileges in the manner established by the Fund. The
Company will distribute to Contract owners and participants, as appropriate, all
proxy material furnished by the Fund and, with respect to each Account, the
Company will vote Shares held by the Account and for which no timely voting
instructions are received from the Contract owners, as well as Shares held by
the Account that are owned by the Company for its general account, in the same
proportion as the Company votes Shares held by the Account for which timely
voting instructions are received from Contract owners. The Company and its
agents will in no way recommend or oppose or interfere with the solicitation of
proxies for Shares held by Contract owners without the prior written consent of
the Fund, which may be withheld in the Fund's sole discretion.
12. Expenses. Except as otherwise provided in this Agreement or any
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Schedule hereto, all expenses incident to the performance by the Fund under this
Agreement shall be paid by the Fund, including the cost of registration of Fund
shares with the SEC and in states where required. The Fund and the Advisor shall
pay no fee or other compensation to the Company under this Agreement and the
Company shall pay no fee or other compensation to the Fund or Advisor, except as
provided herein and in Schedule C attached hereto and made a part of this
Agreement as may be amended from time to time with the mutual consent of the
parties hereto. All expenses incident to performance by each party of its
respective duties under this Agreement shall be paid by that party, unless
otherwise specified in this Agreement.
13. Representations.
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(a) The Company represents and warrants that it is an insurance company
duly organized and in good standing under the laws of its state of incorporation
and that it has legally and validly established each Contract and Account.
(b) The Company represents and warrants that it has registered or,
prior to any issuance or sale of the Contracts, will register each Account as a
unit investment trust ("UIT") in accordance with the provisions of the 1940 Act
and cause each Account to remain so registered to serve as a segregated asset
account for the Contracts unless an exemption from registration is available.
(c) The Company represents and warrants that the Contracts will be
registered under the 1933 Act unless and exemption from registration is
available prior to any issuance or sale of the Contracts and that the Contracts
will be issued and sold in compliance in all material respects with applicable
federal and state laws and further that the sale of the Contracts shall comply
in all material respects with state insurance law suitability requirements.
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(d) The Company represents and warrants that the Contracts are
currently and at the time of issuance will be treated as life insurance,
endowment or annuity contracts under applicable provisions of the Code, that it
will maintain such treatment and that it will notify the Fund 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.
(e) The Fund and the Advisor represent and warrant that the Shares
offered and sold pursuant to this Agreement will be registered under the 1933
Act to the extent required by that Act and sold in accordance with all
applicable federal and state laws, and that the Fund shall be registered under
the 1940 Act to the extent required by that Act, prior to and at the time of any
issuance or sale of such Shares. The Fund shall qualify its Shares for sale in
accordance with the laws of the various states only if and to the extent deemed
advisable by the Fund.
(f) The Fund and the Advisor represent and warrant that each Series
will comply with the diversification requirements set forth in Section 817(h) of
the Code and applicable regulations thereunder and will notify the Company
immediately upon having a reasonable basis for believing any Series has ceased
to comply or might not so comply and will immediately take all reasonable steps
to adequately diversify the Series to achieve compliance.
(g) The Fund and the Advisor represent and warrant that each Series in
which the Accounts invest is currently qualified as a "regulated investment
company" under Subchapter M of the Code and will maintain such qualification.
The Fund and the Advisor will notify the Company immediately upon having a
reasonable basis for believing any Series has ceased to comply or might not so
comply in the future.
14. Indemnification.
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(a) The Fund and the Advisor agree to indemnify, defend and hold the
Company, its officers, directors, employees and agents and any person who
controls the Company within the meaning of Section 15 of the 1933 Act (referred
to in this Section 14(a) collectively as "Indemnified Parties"), free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities, amounts paid in settlement with the consent of the Fund and the
Advisor and any counsel fees incurred in connection therewith) which the
Indemnified Parties may incur under the 1933 Act, or under common law or
otherwise, (i) arising out of or based upon any alleged untrue statement of a
material fact contained in the Fund Registration Statement or arising out of or
based upon any alleged omission to state a material fact required to be stated
in the Fund Registration Statement or necessary to make the statements therein
not misleading, except insofar as such claims, demands, liabilities or expenses
arise out of or are based upon any such untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information furnished in writing by or on behalf of the Company to the Fund or
the Advisor for use in the Fund Registration Statement or otherwise for use in
connection with the sale of Contracts or Shares; (ii) arising out of or based
upon statements or representations (other than statements or representations
made in reliance upon and in conformity with information furnished in writing by
or on behalf of the Company) or wrongful conduct of the Advisor or the Fund or
persons under its control concerning the sale or distribution of the
5
Contracts or Shares; (iii) arising out of or based upon any alleged omission to
state a material fact required to be stated in the registration statement for
the Contracts (including any amendment or supplement to the prospectus or
statement of additional information) ("Contract Registration Statement") or
necessary to make the statements therein not misleading, if such claims,
demands, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information furnished in writing by or on behalf of
the Advisor or the Fund to the Company for use in the Contract Registration
Statement; or (iv) arise out of or result from any material breach of the
representations and/or warranties made by the Advisor or the Fund in this
Agreement or any other material breach of this Agreement by the Advisor or the
Fund. In no event shall anything contained herein be so construed as to protect
the Company against any liability to the Advisor or the Fund or to the
shareholders of any Series to which the Company would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the performance
of its duties or by reason of its reckless disregard of its obligations under
this Agreement.
(b) The Fund and the Advisor shall not be liable to the Company under
this indemnity provision with respect to any claim made against the Company or
any other Indemnified Party unless the Company or other such person shall have
notified the Fund and the Advisor in writing of the claim within a reasonable
time after the summons or other first written notification giving information of
the nature of the claim shall have been served upon the Indemnified Party (or
after the Indemnified Party shall have received notice of service on any
designated agent). However, failure to notify the Fund and the Advisor of any
claim shall not relieve the Fund and the Advisor from any liability which it may
have to an Indemnified Party otherwise than on account of this indemnity
provision. Both the Fund and the Advisor shall be entitled to participate at its
own expense in the defense or, if it so elects, to assume the defense of any
suit brought to enforce any claims subject to this indemnity provision. If the
Fund and/or the Advisor elect to assume the defense of any such claim, the
defense shall be conducted by counsel chosen by the Fund and/or the Advisor, as
applicable, and satisfactory to the Indemnified Parties in the suit whose
approval shall not be unreasonably withheld. In the event that the Fund and/or
the Advisor elect to assume the defense of any suit and retain counsel, the
Indemnified Parties shall bear the fees and expenses of any additional counsel
retained by them. If the Fund and/or the Advisor do not elect to assume the
defense of a suit, it will reimburse the Indemnified Parties for the reasonable
fees and expenses of any counsel retained by them.
(c) The Company agrees to indemnify, defend, and hold the Advisor, the
Fund, and each of their officers, trustees, employees and agents and any person
who controls the Advisor or the Fund within the meaning of Section 15 of the
1933 Act (in this Section 14(c), referred to collectively as "Indemnified
Parties"), free and harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or defending
against such claims, demands or liabilities, amounts paid in settlement with the
consent of the Company and any counsel fees incurred in connection therewith)
which the Indemnified Parties may incur under the 1933 Act or under common law
or otherwise (i) arising out of or based upon any alleged untrue statement of a
material fact contained in the Contract Registration Statement or in the
Contracts themselves or in any sales literature generated or approved by the
Company on behalf of the Contracts or Accounts or arising out of or based upon
any alleged omission to state a material fact in connection with such
information required to be stated in the Contract
6
Registration Statement, Contracts or such sales literature necessary to make the
statements therein not misleading, except insofar as such claims, demands,
liabilities or expenses arise out of or are based upon any such untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information furnished in writing by or on behalf of the Advisor
or the Fund to the Company for use in the Contract Registration Statement, the
Contracts or such sales literature or otherwise for use in connection with the
sale of Contracts or Shares; (ii) arising out of or based upon statements or
representations (other than statements made in reliance upon and in conformity
with information furnished in writing by or on behalf of the Advisor or the
Fund) or wrongful conduct of the Company or persons under its control concerning
the sale or distribution of the Contracts or Shares; (iii) arising out of or
based upon any alleged omission to state a material fact required to be stated
in the Fund Registration Statement or necessary to make the statements therein
not misleading, if such claims, demands, liabilities or expenses arise out of or
are based upon any such untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information furnished
in writing by or on behalf of the Company to the Advisor or the Fund for use in
the Fund Registration Statement; or (iv) arise out of or result from any
material breach of the representations and/or warranties made by the Company in
this Agreement or any other material breach of this Agreement by the Company. In
no event shall anything contained herein be so construed as to protect the
Advisor or the Fund against any liability to the Company which the Advisor or
the Fund would otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence in the performance of its duties or by reason of its
reckless disregard of its obligations under this Agreement.
(d) The Company shall not be liable to the Advisor or the Fund under
this indemnity provision with respect to any claim made against the Advisor or
the Fund or any other Indemnified Party unless the Advisor or the Fund or other
such person shall have notified the Company in writing of the claim within a
reasonable time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the
Indemnified Party (or after the Indemnified Party shall have received notice of
service on any designated agent). However, failure to notify the Company of any
claim shall not relieve the Company from any liability which it may have to an
Indemnified Party otherwise than on account of this indemnity provision. The
Company shall be entitled to participate, at its own expense, in the defense or,
if it so elects, to assume the defense of any suit brought to enforce any claims
subject to this indemnity provision. If the Company elects to assume the defense
of any such claim, the defense shall be conducted by counsel chosen by the
Company and satisfactory to the Indemnified Parties in the suit whose approval
shall not be unreasonably withheld. In the event that the Company elects to
assume the defense of a suit and retain counsel, the Indemnified Parties shall
bear the fees and expenses of any additional counsel retained by them. If the
Company does not elect to assume the defense of any suit, it will reimburse the
Indemnified Parties for the reasonable fees and expenses of any counsel retained
by them.
(e) These indemnification provisions shall survive termination of this
Agreement.
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15. Potential Conflicts.
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(a) The trustees of the Fund will monitor the operations of the Fund
for the existence of any material irreconcilable conflict among the interests of
all Contract owners of all separate accounts investing in each Series of the
Fund. An irreconcilable conflict may arise, among other things, from (i) an
action by any state insurance regulatory authority; (ii) a change in applicable
insurance laws or regulations; (iii) a tax ruling or provision of the Code or
the regulations thereunder; (iv) any other development relating to the tax
treatment of insurers, contract holders or policy owners or beneficiaries of
variable annuity or variable life insurance products; (v) the manner in which
the investments of any Series are managed; (vi) a difference in voting
instructions given by variable annuity contract owners, on the one hand, and
variable life insurance policy owners on the other hand, or by the contract
holders or policy owners of different Participating Insurance Companies; or
(vii) a decision by an insurer to override the voting instructions of
participating contract owners.
(b) The Company is responsible for reporting any potential or existing
conflicts to the trustees of the Fund. The Company will be responsible for
assisting the trustees in carrying out their responsibilities under this Section
15(b) and Section 15(a), by providing the trustees with all information
reasonably necessary for them to consider the issues raised. The Fund will also
request the Advisor to report to the trustees any such conflict which comes to
its attention.
(c) If a majority of the trustees of the Fund or a majority of its
disinterested trustees determine that a material irreconcilable conflict exists
involving the Company, the Company shall, at its expense and to the extent
reasonably practicable (as determined by a majority of the disinterested
trustees), take whatever steps are necessary to eliminate the irreconcilable
material conflict, including withdrawing the assets allocable to some or all of
the separate accounts from the Fund or any Series and reinvesting such assets in
a different investment medium, including another Series of the Fund, offering to
the affected Contract owners the option of making such a change or establishing
a new funding medium, including a registered investment company.
For purposes of this Section 15(c), the trustees or the disinterested
trustees shall determine whether any proposed action adequately remedies any
irreconcilable material conflict. In the event of a determination of the
existence of an irreconcilable material conflict, the trustees shall cause the
Fund to take such action, such as the establishment of one or more additional
Series, as they in their sole discretion determine to be in the interest of all
shareholders and Contract owners in view of all applicable factors, such as the
cost, feasibility, tax, regulatory and other considerations. In no event will
the Fund be required by this Section 15(c) to establish a new funding medium for
any Contract.
The Company shall not be required by this Section 15(c) to establish a
new funding medium for any Contract if an offer to do so has been declined by a
vote of a majority of the Contract owners materially adversely affected by the
material irreconcilable conflict. The Company will recommend to its Contract
owners that they decline an offer to establish a new funding medium only if the
Company believes it is in the best interests of the Contract owners.
8
16. Duration and Termination. This Agreement shall become effective as
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of the date hereof and shall continue in full force and effect until
terminated as set forth below:
(a) At the option of the Fund, the Advisor or the Company, upon receipt
of sixty (60) days' written notice, unless a shorter time is agreed to in
writing by all parties hereto.
(b) At the option of the Fund, the Advisor or the Company, upon the
institution of formal proceedings against a party by the SEC, the NASD or any
other regulatory body, the expected or anticipated outcome of which would, in
the judgment of the terminating party, materially impair the other party's
ability to meet and perform its obligations under this Agreement. Notice of an
election to terminate under this provision shall be furnished in writing and
shall be effective upon receipt.
(c) Upon the determination by the Company to substitute for the Fund's
shares the shares of another investment company in accordance with the terms of
the applicable Contract. The Company will give sixty (60) days' written notice
to the Fund and the Advisor of any decision to replace the Fund's shares. Such
sixty (60) day period will commence upon the Fund's or the Advisor's receipt of
such written notice.
(d) In the event the Fund's Shares are not registered, issued or sold
in accordance with applicable federal or state law or such law precludes the use
of Shares as the underlying investment medium of the Contracts, the Company may
terminate this Agreement effective upon giving notice to the Fund and the
Advisor.
(e) In the event the Contracts cease to qualify as annuity contracts or
life insurance contracts, as applicable under the Code or if the Fund or the
Advisor reasonably believes that the Contracts may fail to so qualify, the Fund
or the Advisor may terminate this Agreement effective upon giving notice to the
Company.
(f) At the option of the Fund or the Advisor, upon the Company's breach
of any material provision of this Agreement, which breach has not been cured to
the satisfaction of the Fund or the Advisor within 10 days after written notice
of such breach is delivered to the Company.
(g) At the option of the Company, upon the Fund's or the Advisor's
breach of any material provision of this Agreement, which breach has not been
cured to the satisfaction of the Company within 10 days after written notice of
such breach is delivered to the Fund and the Advisor.
(h) At the option of the Fund or the Advisor, if the Contracts are not
registered, issued or sold in accordance with applicable federal and/or state
law. Notice of an election to terminate under this provision shall be shall be
effective immediately without notice.
(i) This Agreement shall terminate immediately in the event of its
assignment unless such assignment is made with the prior written consent of the
other party. Termination under this provision shall be effective immediately
without notice.
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17. Amendment of this Agreement. No provision of this Agreement may be
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changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
18. Governing Law. This Agreement shall be construed in accordance
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with the laws of the State of New York and the 1940 Act. To the extent that
the applicable laws of the State of New York conflict with the applicable
provisions of the l940 Act, the latter shall control.
19. Notice. Any notice required or permitted to be given by either
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party to the other shall deemed sufficient upon receipt in writing at the
other party's principal offices.
20. Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
21. Counterparts. This Agreement may be executed in any number of
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counterparts, all of which taken together shall constitute one agreement,
and any party hereto may execute this Agreement by signing any such
counterpart.
22. Severability. In case any one or more of the provisions contained
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in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
23. Entire Agreement. This Agreement constitutes the entire agreement
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and understanding between the parties and supercedes any prior agreement or
understanding relating to the subject matter hereof.
24. Miscellaneous. The captions in this Agreement are included for
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convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. As used
in this Agreement, the term "assignment" shall have the same meaning as
such term has in the l940 Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated as of the day and year first above
written.
XXXXXXX SERIES TRUST
By: /s/ Xxx X. Doberman
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Name: Xxx X. Doberman
Title: Secretary and Vice President
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President and Assistant Secretary
XXXXXXX ADVISORS, INC.
By: /s/ Julian Sluyters
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Name: Julian Sluyters
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Managing Director
GOLDEN AMERICAN LIFE
INSURANCE COMPANY
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Executive Vice President
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
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SCHEDULE A
Accounts of Company Participating in Series of Xxxxxxx Series Trust:
Name of Separate Account Date Established
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Golden American Separate Account B July 14, 1988
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SCHEDULE B
Series of Xxxxxxx Series Trust offered to Accounts of Company:
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Tactical Allocation Portfolio
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SCHEDULE C
The following costs, expenses and reimbursements will be paid by the party
indicated:
1. The Fund shall be liable to the Company for systems and out-of-pocket
costs incurred by the Company in making a Contract owner's or a
participant's account whole, if such costs or expenses are a result of
the Fund's failure to provide timely or correct net asset value
("NAV") information, dividends and capital gains or financial
information and if such information is not corrected by 4:00 p.m.,
Eastern time, on the next business day after the release of such
incorrect information. If a mistake is caused in supplying such
information or confirmations which results in a reconciliation with
incorrect information, the amount required to make a Contract owner's
or a participant's account whole shall be borne by the party providing
the incorrect information, regardless of when the error is corrected.
2. The Fund shall pay for the cost of typesetting and printing periodic
fund reports to shareholders, prospectuses and any supplements
thereto, statements of additional information and supplements thereto,
and other materials that are required by law to be sent to Contract
owners or participants, as well as the cost of distributing such
materials to the Company. The Company shall pay for the distribution
thereof for prospective Contract owners or participants. Each party
shall be provided with such supporting data as may reasonably be
requested for determining these expenses.
3. The Fund shall pay all expenses in connection with the provision to
the Company of a sufficient quantity of its proxy materials. The cost
associated with proxy preparation, group authorization letters,
programming for tabulation and necessary materials (including postage)
will be paid by the Fund.
14
