AMENDMENT TO
PARTICIPATION AGREEMENT
The Participation Agreement (the "Agreement"), dated as of July 13, 2001, by and
among AIM Variable Insurance Funds, Golden American Life Insurance Company, and
Directed Services, Inc., is hereby amended as follows:
All references to "Golden American Life Insurance Company" shall hereby be
changed to "ING USA Annuity and Life Insurance Company."
SECTION 2.3 of the Agreement is hereby deleted in its entirety and replaced with
the following:
2.3 APPLICABLE PRICE
(a) Share purchase payments and redemption orders that result from
purchase payments, premium payments, surrenders and other transactions
under Contracts (collectively, "Contract transactions") and that LIFE
COMPANY receives prior to the close of regular trading on the New York
Stock Exchange (or such other time set by the Board for purposes of
determining the current net asset value of a Fund in accordance with Rule
22c-1 under the 0000 Xxx) on a Business Day will be executed at the net
asset values of the appropriate Funds next computed after receipt by AVIF
or its designated agent of the orders. For purposes of this Section 2.3(a),
LIFE COMPANY shall be the designated agent of AVIF for receipt of orders
relating to Contract transactions, , in accordance with Section 22(c) and
Rule 22c-1 under the 1940 Act, on each Business Day and receipt by such
designated agent shall constitute receipt by AVIF; provided that AVIF
receives notice of such orders by 9:00 a.m. Central Time on the next
following Business Day or such later time as computed in accordance with
Section 2.1(b) hereof. In connection with this Section 2.3(a), LIFE COMPANY
represents and warrants that it will not submit any order for Shares or
engage in any practice, nor will it allow or suffer any person acting on
its behalf to submit any order for Shares or engage in any practice, that
would violate or cause a violation of applicable law or regulation
including, without limitation Section 22 of the 1940 Act and the rules
thereunder.
(b) All other Share purchases and redemptions by LIFE COMPANY will be
effected at the net asset values of the appropriate Funds next computed
after receipt by AVIF or its designated agent of the order therefor, and
such orders will be irrevocable.
(c) Without limiting the scope or effect of Section 1.1 hereof,
pursuant to which the Board may reject a Share purchase order by or on
behalf of LIFE COMPANY under the circumstances described therein, LIFE
COMPANY agrees to cooperate with the Fund and AIM to prevent any person
exercising, or purporting to exercise, rights or privileges under one or
more Contracts (including, but not limited to Contract owners, annuitants,
insureds or participants, as the case may be (collectively,
"Participants")) from engaging in any trading practices in any Fund that
the Board or AIM determines, in good faith and in their sole discretion, to
be detrimental or potentially detrimental to the other shareholders of the
Fund, or to be in contravention of any applicable law or regulation
including, without limitation, Section 22 of the 1940 Act and the rules
thereunder. Such cooperation may include, but shall not be limited to,
identifying the person or persons engaging in such trading practices,
facilitating the imposition of any applicable redemption fee on such person
or persons, limiting the telephonic or electronic trading privileges of
such person or persons, and taking such other remedial steps, all to the
extent permitted or required by applicable law.
SECTION 6.3 of the Agreement is hereby deleted in its entirety and replaced with
the following:
6.3 FUNDS TO REMAIN AVAILABLE
Notwithstanding any termination of this Agreement by LIFE COMPANY,
AVIF will, at the option of LIFE 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"), unless
AIM or the Board determines that doing so would not serve the best
interests of the shareholders of the
affected Funds or would be inconsistent with applicable law or regulation.
Specifically, without limitation, the owners of the Existing Contracts will
be permitted to reallocate investments in the Fund (as in effect on such
date), redeem investments in the Fund and/or invest in the Fund upon the
making of additional purchase payments under the Existing Contracts. The
parties agree that this Section 6.3 will not apply to any (i) terminations
under Section 5 and the effect of such terminations will be governed by
Section 5 of this Agreement or (ii) any rejected purchase and/or redemption
order as described in Section 2.3(c) hereof.
SECTION 21 is hereby added to the Agreement:
SECTION 21. FORCE MAJEURE
Each Party shall be excused from the performance of any of its
obligations to the other where such nonperformance is occasioned by any
event beyond its control which shall include, without limitation, any
applicable order, rule or regulation of any federal, state or local body,
agency or instrumentality with jurisdiction, work stoppage, accident,
natural disaster, war, acts of terrorism or civil disorder, provided that
the Party so excused shall use all reasonable efforts to minimize its
nonperformance and overcome, remedy, cure or remove such event as soon as
is reasonably practicable, and such performance shall be excused only for
so long as, in any given case, the force or circumstances making
performance impossible shall exist.
SCHEDULE A - FUNDS AVAILABLE UNDER THE CONTRACTS, of the Agreement is hereby
deleted in its entirety and replaced with the following:
FUNDS AVAILABLE UNDER THE CONTRACTS
AIM V.I. Aggressive Growth Fund
AIM V.I. Balanced Fund
AIM V.I. Basic Value Fund
AIM V.I. Blue Chip Fund
AIM V.I. Capital Appreciation Fund
AIM V.I. Capital Development Fund
AIM V.I. Core Equity Fund
AIM V.I. Dent Demographic Trends Fund
AIM V.I. Diversified Income Fund
AIM V.I. Government Securities Fund
AIM V.I. Growth Fund
AIM V.I. High Yield Fund
AIM V.I. International Growth Fund
AIM V.I. Large Cap Growth Fund
AIM V.I. Mid Cap Core Equity Fund
AIM V.I. Money Market Fund
AIM V.I. Premier Equity Fund
AIM V.I. Real Estate Fund
AIM V.I. Small Cap Equity Fund
INVESCO VIF - Core Equity Fund (name will be changed to AIM V.I. Core Stock
Fund on October 15, 2004)
INVESCO VIF - Dynamics Fund (name will be changed to AIM V.I. Dynamics Fund on
October 15, 2004)
INVESCO VIF - Financial Services Fund (name will be changed to AIM V.I.
Financial Services Fund on October 15, 2004)
INVESCO VIF - Health Sciences Fund (name will be changed to AIM V.I. Health
Sciences Fund on October 15, 2004)
INVESCO VIF - Leisure Fund (name will be changed to AIM V.I. Leisure Fund on
October 15, 2004)
INVESCO VIF - Small Company Growth Fund (name will be changed to AIM V.I. Small
Company Growth Fund on October 15, 2004)
INVESCO VIF - Technology Fund (name will be changed to AIM V.I. Technology
Fund on October 15, 2004)
INVESCO VIF - Total Return Fund (name will be changed to AIM V.I. Total Return
Fund on October 15, 2004)
INVESCO VIF - Utilities Fund (name will be changed to AIM V.I. Utilities Fund
on October 15, 2004)
SEPARATE ACCOUNTS UTILIZING THE FUNDS
Golden American Separate Account B
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
Smartdesign Variable Annuity
Smartdesign Advantage
Golden Select Access
Golden Select DVA Plus
Golden Select ESII
Golden Select Landmark
Golden Select Premium Plus
All other terms and provisions of the Agreement not amended herein shall remain
in full force and effect.
Effective date: April 30, 2004
AIM VARIABLE INSURANCE FUNDS
Attest: /s/ Xxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary Title: President
ING USA ANNUITY AND LIFE INSURANCE
COMPANY (F/K/A/ GOLDEN AMERICAN LIFE
INSURANCE COMPANY)
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
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Name: Name:
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Title: Title:
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DIRECTED SERVICES, INC.
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
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Name: Name:
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Title: Title:
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