EXHIBIT (h)(3)(A)
SETTLEMENT AGREEMENT
AMONG
WESTERN CAPITAL SPECIALTY MANAGERS TRUST,
WESTERN CAPITAL FINANCIAL GROUP
AND
GOLDEN AMERICAN LIFE INSURANCE COMPANY
This Agreement is dated as of December 28, 1988, by and between
Western Capital Specialty Managers Trust, a Massachusetts business
trust (the "Trust"), Western Capital Financial Group ("Western
Capital"), a California corporation, and Golden American Life
Insurance Company ("Golden American") on its own behalf and on behalf
of any separate accounts of Golden American shown on Exhibit A (the
"Variable Accounts").
WHEREAS, the Variable Accounts are segregated asset accounts
established by resolution of the Board of Directors of Golden
American pursuant to the laws of the State of Minnesota to set aside
and invest assets attributable to variable life insurance policies
and variable annuity contracts ("Policies") to be issued by Golden
American; and
WHEREAS, the Variable Accounts are registered as unit investment
trusts under the Investment Company Act of 1940 ("Investment Company
Act"), as amended; and
WHEREAS, the Trust is registered as an open-end management
investment company under the Investment Company Act and its shares
will be registered under the Securities Act of 1933 ("Securities
Act"), as amended, and will initially consist of seven portfolios;
and
WHEREAS, Western Capital, pursuant to a written agreement, is
the distributor for shares of the portfolios of the Trust and is
registered as a broker-dealer with the Securities and Exchange
Commission ("Commission") under the Securities Exchange Act of 1934
("Exchange Act"), as amended, and is a member in good standing of the
National Association of Securities Dealers, Inc. ("NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws
and regulations, Golden American intends to purchase shares in the
portfolios of the Trust shown on Exhibit B (hereinafter "Series") on
behalf of the Variable Accounts to serve as an investment medium for
the Policies,
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and Western Capital is authorized to sell such shares
and agrees to make shares of the Series available to the Variable
Accounts.
NOW, THEREFORE, Western Capital, Golden American and the Trust,
in consideration of the premises and the mutual covenants and
promises hereinafter set forth, hereby agree as follows:
1. Subject to paragraph 3, Western Capital will sell shares of the
Series to the Variable Accounts and will execute such orders on days
that the Trust values its shares as described in its prospectus in
such amounts as shall be requested. Such sales will be made at the
"net asset value" next computed after an order to purchase shares is
received by the Trust, its transfer agent or its designee, and no
commission on such sales shall be due or payable to Western Capital.
The Variable Accounts shall not be under any obligation to purchase
shares of the Series at any time or in any amount other than for
which its has a bona fide order.
2. Solely for the purposes of paragraph 1, the Trust agrees that
Golden American shall be the designee of the Trust's transfer agent
for receipt of such orders from the Variable Accounts (but not the
General Account of Golden American), and receipt by such agent shall
constitute receipt by the Trust, provided that the Trust receives
notice of such order by 12:00 noon on the next following Business
Day. "Business Day" shall mean any day on which the New York Stock
Exchange is open for trading or any day on which the Trust is
required to calculate its net asset value pursuant to the rules
promulgated by the Commission. The provisions of this paragraph 2
shall apply solely to orders based upon purchases of interests under
the Policies, and shall not apply to any other orders, including
those orders based upon investment by Golden American for its own
account.
3. Western Capital and the Trust agree to make shares of each
Series available for purchase by Golden American on behalf of the
Variable Accounts at the applicable net asset value per share on
those days on which the Trust calculates such net asset value per
share, pursuant to the rules promulgated by the Commission, and the
Trust shall use its reasonable efforts to calculate such net asset
value on each day the New York Stock Exchange is open for trading or
any day on which the Trust is required to calculate its net asset
value pursuant to the rules promulgated by the Commission; provided,
however, that the Board of Trustees of the Trust may refuse to sell
shares of the Series of the Trust to any person or 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 such Trustees acting in good
faith and in
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light of their fiduciary duties under applicable law, necessary
in the best interests of the shareholders of the Trust. The Trust
shall take such steps as may be necessary to provide a sufficient
number of shares to meet the orders of the Variable Account.
4. The parties agree that no shares of the Series will be sold
directly to the general public. Shares of the Trust will be
available only to general and separate accounts of life insurance
companies issuing variable life insurance policies and variable
annuity contracts for which the Trust serves as an investment
vehicle.
It is further agreed among the parties that the Policies
will be distributed to the public only by broker-dealers
that are registered under the Exchange Act as broker-
dealers and are members of the NASD ("retail broker-
dealers") and that enter into a written agreement ("Sales
Agreement") with Golden American or an affiliate of Golden
American and that any such Sales Agreement shall provide,
that as partial consideration for the right to offer to
sell the Policies for which the Trust serves as an
investment vehicle, and as a condition precedent to the
effectiveness of the Sales Agreement, the retail broker-
dealer shall enter into an agreement with Western Capital
in the form of the Participation Rights Agreement provided
in Schedule A or shall enter into an agreement that
contains all of the provisions contained in the agreement
in Schedule A.
5. The Trust will redeem, at Golden American's request, any full or
fractional shares tendered for redemption by the Variable Account at
the net asset value next computed after such request is received in
good order by the Trust, its transfer agent or its designee. No
Series shall change the terms and conditions for the redemption of
its shares as set forth in the most recent effective Registration
Statement for the Trust without the prior approval of the parties
hereto.
6. For purposes of paragraph 5, and solely for transactions caused
by redemptions of Policies underlying the Trust, the Trust agrees
that Golden American shall be the designee of the Trust's transfer
agent for receipt of such orders from the Variable Accounts and
receipt by such agent shall constitute receipt by the Trust, provided
that the Trust receives notice of such order by 12:00 noon New York
time on the next following Business Day. The provisions of this
paragraph 6 shall apply solely to tenders for redemptions based upon
redemptions of interests under the Policies, and shall not apply to
any other tenders or requests for redemptions, including those based
upon investment by Golden American for its own account.
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7. All transactions involving the purchase of shares of the Series
shall be settled the same day the Trust executes an order for the
purchase of shares of the Series, as provided in Paragraph 1 of this
Agreement. Transactions involving the redemption of shares of the
Series shall ordinarily be settled the same day that the Trust
effects the redemption as provided in Paragraph 5 of this Agreement,
except that the Trust reserves the right to delay settlement upon
redemption, but in not event may such settlement be delayed longer
than the period as permitted under Section 22(e) of the Investment
Company Act. All funds used for purchase of redemption transactions
shall be in Federal Funds transmitted by wire transfer. Issuance and
transfer of shares of the Series will be by book entry only, unless
otherwise agreed by all parties. Stock certificates will not be
issued to Golden American or the Variable Accounts. Shares of the
Series ordered from the Trust will be recorded in appropriate ledgers
for the Variable Accounts.
8. The Trust shall instruct its recordkeeping agent that on each
day the net asset value of the shares of any Series is required to be
calculated pursuant to the requirements of the Investment Company
Act, the Trust shall provide The Golden Financial Group, Inc. (a New
York corporation acting on behalf of Golden American pursuant to an
Administrative Services Agreement) with the net asset value of such
shares of the Series by 5:30 p.m. New York time, or as soon
thereafter as practicable. The Trust shall also provide Directed
Services, Inc., a subsidiary of The Golden Financial Group, Inc. that
is also distributor for the Policies, daily with any and all
financial information that is deemed reasonably necessary for
Directed Services to comply with its responsibilities as distributor
for the Policies. This financial information shall also be provided
to Golden American or its designated agent, The Golden Financial
Group, Inc. by 5:30 p.m. New York time or as soon thereafter as
practicable on each day on which such net asset value is calculated,
unless circumstances make compliance with such schedule
impracticable, in which event the Trust or its agent will provide the
information as soon as reasonably practicable.
9. It is understood by the parties that this Agreement shall apply
to additional series created for the Trust unless a party to this
Agreement notifies the other parties of its obligation in accordance
with the notification provisions contained in paragraph 15.
10. (a) Golden American agrees to indemnify and hold harmless
Western Capital and the Trust and each of their Trustees, officers,
employees, and each person, if any, who controls Western Capital or
the Trust within the meaning of Section 15 of the Securities Act and
each person who is an affiliated person of Western Capital or the
Trust within the
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meaning of Section 2(a)(3) of the Investment Company
Act of 1940 (collectively, the "Indemnified Parties" for purposes of
this paragraph 10) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written
consent of Golden American), or litigation expenses (including 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 are related to the sale
or acquisition of the Policies or the Trusts' shares and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement or prospectus for the Policies or contained in the Policies
or sales literature for the Policies (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 therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify
shall 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 Golden American
or its affiliates by or on behalf of Western Capital, the Trust or an
affiliate of either, for use in the registration statement or
prospectus for the Policies or in the Policies or sales literature
(or any amendment or supplement thereto) or otherwise for use in
connection with the sale of the Policies or the Trust shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus, or sales literature of the Trust
not supplied by Golden American or persons under its control) or
wrongful conduct of Golden American, its officers, directors,
employees or persons under its control, with respect to the sale or
distribution of the Policies or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, or
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sales literature for the Trust or any amendment
thereof or supplement thereto, or the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading if such a
statement or omission was made in reliance upon information
furnished to the Trust by or on behalf of Golden American, its
officers, directors, employees, or affiliated persons thereof; or
(iv) arise as a result of any failure by Golden American to provide
the services and to furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by Golden American in this
Agreement or arise out of or result from any other material breach
of this Agreement by Golden American, as limited by and in
accordance with the provisions of subparagraphs (b) and (c) of
this paragraph 10.
(b) Golden American shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities,
or litigation expenses to which an Indemnified Party would otherwise
be subject by reason of such Indemnified Party's willful misfeasance,
bad faith, or gross negligence in the performance of such Indemnified
Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations or duties under this Agreement or to the
Trust, whichever is applicable.
(c) Golden American shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon
such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but failure
to notify Golden American of any such claim shall not relieve Golden
American from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account
of this indemnification provision. In case any such action is
brought against the Indemnified Parties, Golden American shall be
entitled to participate, at its own expense, in the defense of such
action. Golden American also shall be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the Action.
7
After notice from Golden American to such party of Golden American's
election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it,
and Golden American will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by
such party independently in connection with the defense thereof other
than reasonable costs of investigation.
(d) The Indemnified Parties will promptly notify Golden American of
the commencement of any litigation or proceedings against them in
connection with the issuance or sale of Trust shares or the Policies
or the operation of the Trust.
11. (a) The Trust, and Western Capital, or both of them, as appropriate,
agree to indemnify and hold harmless Golden American and
each of its directors, officers, employees, and each person, if any,
who controls Golden American within the meaning of Section 15 of the
Securities Act and each person who is an affiliated person of Golden
American within the meaning of Section 2(a)(3) of the Investment
Company Act of 1940 (collectively, the "Indemnified Parties" for
purposes of this Paragraph 11) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the
written consent of the Trust) or litigation expenses (including legal
and other expenses) to which the Indemnified Parties may become
subject under any statute, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the sale or
acquisition of the Trust's shares and:
(i) arise out of or are based upon an untrue statement or alleged
untrue statement of any material fact contained in the registration
statement or prospectus for the Trust or sales literature for the
Trust (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 therein or
necessary to make the statements therein not misleading; provided
that this agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or such alleged
statement or omission or such alleged statement or omission was made
in reliance upon and in conformity with information furnished to
Western Capital or the Trust by or on behalf of Golden American or an
affiliate thereof for use in the registration statement or prospectus
for the Trust or in sales
8
literature (or any amendment or supplement) or otherwise for use
in connection with the sale of the Policies or the Trust shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus, or sales literature for the
Policies not supplied by the Trust, Western Capital or persons under
their control) or wrongful conduct of the Trust or Western Capital,
their officers, directors, employees or persons under their control,
with respect to the sale of the Policies or Trust shares: or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, or
sales literature for the Policies, or any amendment thereof or
supplement thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not misleading,
if such statement or omission was made in reliance upon information
furnished to Golden American by or on behalf of the Trust or Western
Capital; or
(iv) arise as a result of any failure by the Trust to provide the
services and furnish the materials under the terms of this Agreement;
or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Trust or Western Capital
in this Agreement or arise out of or result from any other material
breach of this Agreement by the Trust or Western Capital, as limited
by and in accordance with the provisions of subparagraphs (b) and (c)
of this Paragraph 11.
(b) Neither the Trust nor Western Capital shall be liable under this
indemnification provision with respect to any losses, claims,
damages, liabilities, or litigation expenses to which an Indemnified
Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless
9
disregard of obligations and duties under this Agreement or to Golden
American or the Variable Accounts, whichever is applicable.
(c) Neither the Trust nor Western Capital shall be liable under this
indemnification provision with respect to any claim made against any
Indemnified Party unless such Indemnified Party shall have notified
Western Capital and/or the Trust, as appropriate, in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon
such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but failure
to notify the Trust or Western Capital of any such claim shall not
relieve the Trust or Western Capital from any liability which either
of them may have to the Indemnified Party against whom such action is
brought otherwise than on account of this indemnification provision.
In case any such action is brought against the Indemnified Parties,
the Trust and Western Capital will be entitled to participate, at
their expense, in the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Trust and/or
Western Capital to such party of the Trust's and/or Western Capital's
election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it,
and Trust and Western Capital will not be liable to such party under
this Agreement for any legal or other expenses subsequently incurred
by such party independently in connection with the defense thereof
other than reasonable costs of investigation.
(d) Golden American agrees to promptly notify the Trust and Western
Capital of the commencement of any litigation or proceedings against
it or any of its officers or directors in connection with the
issuance or sale of the Policies or the operation of the Variable
Accounts.
12. Golden American shall provide the Trust and Western Capital with
copies of all written complaints received and responses thereto sent
by Golden American or its affiliates or agents that pertain to the
purchase or sale of the Policies or to the operation of the Trust.
Such copies shall be sent to the Trust and Western Capital
concurrently with the mailing of the response to any such complaint.
10
The Trust and Western Capital shall provide Golden American
with copies of all written complaints received by either of
them that pertain to the purchase or sale of the Policies
or to the operation of the Variable Accounts.
13. This Agreement may be terminated by any of the parties upon
giving one hundred twenty (120) days written notice to the other
parties provided, however, that if any party fails to carry out its
responsibilities enumerated under this Agreement in any material
respect, the other parties shall have the right to terminate this
Agreement immediately and if for any reason shares of the Series are
not available Golden American shall have the right to terminate this
Agreement immediately.
14. Unless earlier terminated pursuant to Paragraph 13 hereof, this
Agreement shall remain in effect for a one year period beginning on
the effective date of this Agreement and will continue thereafter in
effect from year to year. Upon termination of this Agreement, all
authorizations, rights and obligations imposed on the parties under
this Agreement except for the indemnification provisions contained
in Paragraphs 10 and 11 above shall cease. Notwithstanding the
foregoing, in the event of termination and unless otherwise agreed
to by the parties, transactions for existing policyowners will
continue to be executed under the terms of this Agreement.
15. Any notice shall be sufficiently given when sent by registered
or certified mail to the other parties at the address of such
parties as set forth below or at such other address as such party
may from time to time specify in writing to the other parties:
To: Western Capital Specialty Managers Trust
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxxx, Xxxxxxx Price & Xxxxxx
0000 X Xxxxxx, Xxxxxxxxxx, X.X. 00000
To: Western Capital Financial Group
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
To: Golden American Life Insurance Company
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
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16. This Agreement shall be construed with and the provisions hereof
interpreted under an in accordance with the laws of the State of New
York.
17. This Agreement shall be subject to the provisions of the
Investment Company Act, the Securities Act and the Exchange Act and
the rules, regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the
Securities and Exchange Commission may grant and the terms hereof
shall be interpreted and construed in accordance therewith.
18. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
19. A copy of the Trust's Declaration of Trust is on file with the
Secretary of the Commonwealth of Massachusetts. The Declaration of
Trust has been executed on behalf of the Trust by the Trustees in
their capacity as Trustees of the Trust and not individually. The
obligations upon the Trust under this Agreement shall be binding
upon the assets and property of the Trust and shall not be binding
upon any Trustee, officer, employee or shareholder of the Trust
individually.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
WESTERN CAPITAL SPECIALTY MANAGERS TRUST
BY: /s/ Xxxxxxx X. Xxxxxx
------------------------
Xxxxxxx X. Xxxxxx
President
ATTEST: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------
NAME: Xxxxxxx X. Xxxxxxxxxx
TITLE: President
WESTERN CAPITAL FINANCIAL GROUP
BY: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxxx
President
ATTEST: /s/ Xxxxxxx X. Xxxxxx
------------------------
NAME: Xxxxxxx X. Xxxxxx
TITLE: President, "Trust"
GOLDEN AMERICAN LIFE INSURANCE COMPANY
BY: /s/ Xxxx X. Xxxxxxxx
------------------------
Xxxx X. Xxxxxxxx
President
ATTEST: /s/ Xxxxxxx X. Beckenlegge
----------------------------
NAME: Xxxxxxx X. Beckenlegge
TITLE: Secretary
EXHIBIT A TO
SETTLEMENT AGREEMENT AMONG WESTERN CAPITAL SPECIALTY
MANAGERS TRUST, WESTERN CAPITAL FINANCIAL GROUP,
AND
GOLDEN AMERICAN LIFE INSURANCE COMPANY
THE WESTERN CAPITAL SPECIALTY MANAGERS SEPARATE ACCOUNT A
THE WESTERN CAPITAL SPECIALTY MANAGERS SEPARATE ACCOUNT B
EXHIBIT B TO
SETTLEMENT AGREEMENT AMONG
SETTLEMENT AGREEMENT AMONG WESTERN CAPITAL SPECIALTY
MANAGERS TRUST, WESTERN CAPITAL FINANCIAL GROUP,
AND
GOLDEN AMERICAN LIFE INSURANCE COMPANY
MULTIPLE ALLOCATION SERIES
FULLY MANAGER SERIES
LIMITED MATURITY BOND SERIES
NATURAL RESOURCES SERIES
REAL ESTATE SERIES
ALL-GROWTH SERIES
LIQUID ASSET SERIES
SCHEDULE A
PARTICIPATION RIGHTS AGREEMENT
This Agreement, dated as of __________, 1988, by and
between Western Capital Financial Group ("Western Capital"), a
California corporation registered as a broker-dealer under the
Securities Exchange Act of 1934 and registered as a broker-
dealer with the National Association of Securities Dealers, Inc.
("NASD"), and _________ ("General Agent"), also a broker-dealer
registered under the Securities Exchange Act of 1934 and a
member of the NASD.
WHEREAS, Western Capital is the distributor for the Western
Capital Specialty Managers Trust (the "Trust"), and
WHEREAS, the Trust as the investment vehicle for variable
life insurance policies and variable annuity contracts
("Policies") to be issued by Golden American Life Insurance
Company ("Golden American") through segregated asset accounts of
Golden American identified on Schedule A ("Variable Accounts");
and
WHEREAS, General Agent has entered or intends to enter into
a Sales Agreement with Directed Services, Inc. ("DSI"), an
affiliate of Golden American, under which General Agent will
solicit applications for the sale of the Policies, and
WHEREAS, a condition precedent to the effectiveness of the
Sales Agreement with DSI is that General Agent enter into this
agreement with Western Capital.
NOW THEREFORE, Western Capital and General Agent, in
consideration of these premises and of the mutual covenants and
promises hereinafter set forth, and in partial consideration for
the right of General Agent to solicit applications for sale of
the Policies under the Sales Agreement between DSI and General
Agent, the parties agree as follows:
1. Trust Prospectus. General Agent is authorized for the term of
this Agreement to distribute the prospectus and, upon request from an
investor, the statement of additional information for the Trust in
connection with the solicitation of applications for sales of the
Policies.
2. Unauthorized Representations. General Agent agrees that neither
it nor any of its directors, partners, officers, employees,
registered representatives, agents, or affiliated person will give
any information or make any representations
or statements, whether written or oral, on behalf of the Trust or
concerning the Trust or Trust shares in connection with the offer
or sale of the Policies other than information or representations
contained in the prospectus, statement of additional information,
or registration statement for the Trust shares, as they may be
supplemented or amended from time to time, or in reports or proxy
statements for the Trust, or in sales literature or other
promotional material or information supplied or approved by (1)
DSI and (2) the Trust, Western Capital or an affiliate of Western
Capital.
3. Sales Literature. General Agent agrees that neither it nor any
of its directors, partners, officers, employees, registered
representatives, agents, or affiliated persons shall use any sales
literature or other promotional material respecting the Policies or
the Trust unless such material has been approved in advance by (1)
DSI and (2) the Trust, Western Capital or an affiliate of Western
Capital.
4. Policy Owner Names. General Agent acknowledges that Section 9
of the Organizational Agreement among Golden American, the Variable
Accounts, the Trust and Western Capital Variable Advisors Corp.
("Western Advisory") provides, in pertinent part: "In the event of a
shareholder meeting, Golden American agrees to provide the Trust
and/or Western advisors with a list of the names and addresses of
owners of the Policies within five (5) days of receipt of a written
request for such list." General Agent agrees that DSI or Golden
American may release the names and addresses of owners of the
Policies under the terms of the Organizational Agreement and agrees
that Western Capital may receive such information.
Western Capital agrees to use such information only for
purposes relating to meetings of shareholders including
sending to the owners of the Policies notices of
shareholder meetings and soliciting proxies from Policy
owners in connection with shareholder meetings.
General Agent agrees that, notwithstanding any provision
in its Sales Agreement with DSI respecting the
confidentiality of such information, it will hold
harmless Golden American, DSI, Western Capital and the
Trust for the release by Golden American of such
information for such purposes.
5. Standard of Care. Western Capital and General Agent agree that
each party shall be held to a standard of reasonable care in
fulfilling its responsibilities under this Agreement.
6. Indemnification. General Agent agrees to indemnify and hold
harmless the Trust, Western Capital, and each of their directors,
Trustees, officers, employees, and affiliates, and each person, if
any, who controls Western Capital, Western Advisors or the Trust
within the meaning of Section 15 of the Securities Act of 1933
(collectively, the "Western Capital Indemnified Parties") against any
and all losses, claims, damages, liabilities, or expenses (including
legal and other expenses, litigation expenses, and amounts paid in
settlement) that arise out of or as a result of any unauthorized use
of the prospectus or statement of additional information for the
Trust or any sales literature or other promotional material
respecting the Trust or the Policies, or any verbal or written
misrepresentations, or any unlawful sales practices concerning the
Policies or the Trust shares by General Agent or any of its
directors, partners, officers, employees, registered representatives,
agents, or affiliated persons, provided, however, that General Agent
shall not be liable in any such case to the extent that such loss,
claim, damage, liability, or expense arises out of or is based upon
(1) an untrue statement or representation contained in the
registration statement, prospectus, or statement of additional
information of the Trust, as amended or supplemented from time to
time, in a proxy statement or periodic report of the Trust, or in
sales literature or other promotional material approved in advance by
the Trust, Western Capital, or an affiliate of Western Capital, (ii)
an omission or alleged omission in the registration statement,
prospectus, or statement of additional information of the Trust, as
amended or supplemented from time to time, in a proxy statement or
period report of the Trust, or in sales literature or other
promotional material approved in advance by the Trust, Western
Capital, or an affiliate of Western Capital, which was necessary, in
the context of all information contained in such document, to make
statements therein not misleading. This indemnity agreement will be
in addition to any liability which General Agent may otherwise have.
7. Agent's Report. For each application for a Policy solicited by
General Agent, General Agent agrees to complete an agent's report
addressing the suitability of the Policy for the applicant. General
Agent shall retain a copy of each such report, and shall provide
Western Capital with a copy of any such report upon reasonable
request from Western Capital.
8. Termination. This Agreement may be terminated at any time by
either party upon a material breach of any provision of this
Agreement by the other party. This Agreement may be terminated by
either party upon 60 days written notice to the other, but not before
the termination of the Sales Agreement between General Agent and DSI.
Upon termination of this Agreement, all authorization, rights and
obligations hereunder shall cease except (1) the indemnification
provisions set forth in paragraph 6; and (2) the confidentiality
provisions set forth in paragraph 4.
9. Miscellaneous. This Agreement shall be construed and the
provisions hereof interpreted under and in accordance with the laws
of the State of California. The work "affiliate" shall mean an
affiliated person as defined in Section 2(a)(3) of the Investment
Company Act of 1940. This Agreement is assignable by either party
only upon the prior written consent of the other. Western Capital
and General Agent agree that Golden American and DSI shall be third
party beneficiaries under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above
written.
Western Capital Financial Group
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxxxx
Title: President
Attest: /s/ Xxxxxxx X. Xxxxxx
----------------------
Xxxxxxx X. Xxxxxx
General Agent
By:
----------------------------
Title:
Attest:
---------------------
ACKNOWLEDGED:
GOLDEN AMERICAN LIFE INSURANCE COMPANY
/s/ Xxxx Xxxxxxxx
---------------------
Xxxx Xxxxxxxx
President
Attest: /s/ Xxxxxxx X. Xxxxxxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxxxxxx
Secretary
