AMENDMENT TO
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PARTICIPATION AGREEMENT
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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-l 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 A VIF or its designated agent of the orders. For
purposes of this Section 2.3(a), LIFE COMPANY shall be the designated agent of A
VIF for receipt of orders relating to Contract transactions, in accordance with
Section 22( c) and Rule 22c-l under the 1940 Act, on each Business Day and
receipt by such designated agent shall constitute receipt by A VIF; provided
that A VIF 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.I(b) hereof. In connection with this Section 2.3(a), LIFE COMPANY represents
and warrants that it will not submit any order for Shares, nor will it allow or
suffer any person acting on its behalf to submit any order for Shares, 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 A VIF 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")) ITom 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, A
VIF 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
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031704 (I) rgr
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 order as described in Section 2.3(c) hereof.
SECTION 21 is hereby added to the Agreement:
SECTION 21. FORCE MAJEURE
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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, ofthe 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)
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SEPARATE ACCOUNTS UTILIZING THE FUNDS
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ING USA Separate Account B
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
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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.
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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
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Title: Assistant Secretary Title: President
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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: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxx
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Title: Counsel Title: President
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DIRECTED SERVICES, INC.
Attest: /s/Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
------------------- ----------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxxx
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Title: Counsel Title: Senior Vice President
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