EXHIBIT (10)(d)
ASSET MANAGEMENT AGREEMENT
THIS ASSET MANAGEMENT AGREEMENT (the "Agreement"), dated January
20, 1998, and effective as of the date specified in Section 17 hereof, is by
and between GOLDEN AMERICAN LIFE INSURANCE COMPANY, a Delaware corporation
(the "Client"), and ING INVESTMENT MANAGEMENT LLC, a Delaware limited
liability company ("ING-IM").
SECTION 1. APPOINTMENT OF ING-IM - The Client hereby appoints ING-IM to
provide asset management services for the Client's general account (the
"Account") under the terms and conditions set forth in this Agreement. ING-
IM hereby accepts such appointment and agrees to provide such asset
management services as are specified in EXHIBIT "A" attached hereto and
incorporated herein by reference.
SECTION 2. RECOMMENDATIONS - INVESTMENTS - ING-IM shall make
recommendations to the Client relating to the direction and management of the
investment and reinvestment of assets in the Account and any additions
thereto. No cash or securities due to or held for the Account shall be paid
or delivered to ING-IM except in payment of the fee payable to ING-IM under
this Agreement.
SECTION 3. DISCRETIONARY AUTHORITY - BROKERAGE - ING-IM shall have full
and complete discretion to establish brokerage accounts in the name of the
Client and execute transactions in securities markets in the name of the
Client, pursuant to proper authorization from the Client, through one or more
securities broker/dealer firms as ING-IM may select, including those which
from time to time may furnish to ING-IM statistical and investment research
information and other services. The Client accepts the Statement of Policy
on Brokerage Practices which is attached to this Agreement as EXHIBIT "B" and
incorporated herein by reference. This policy may be modified by ING-IM in
consultation with the Client.
SECTION 4. INVESTMENT OBJECTIVES - The investment objectives and
guidelines for the Account will be communicated in writing by the Client from
time to time. ING-IM will utilize these objectives in managing the Account.
SECTION 5. ADMINISTRATIVE SERVICES - ING-IM will provide the Client with
the following administrative services: preparation of Schedules B and D to
the Client's annual statement; pricing of portfolios on a periodic basis as
mutually agreed; mortgage loan servicing for both direct and mortgage banker-
serviced loans; private placement securities servicing; coordination of
purchases and sales at custodian bank; and coordination of securities lending
by agent banks.
SECTION 6. FEES - The Client will pay to ING-IM as full compensation for
services rendered a quarterly fee based on the quarterly fees set for in
EXHIBIT "C" attached hereto and incorporated herein by reference, as it may
be amended in writing.
If ING-IM shall serve for less than the whole of any quarterly period, its
compensation determined as provided above shall be calculated and shall be
payable on a pro rata basis for the period of the calendar quarter for which
it has served as an adviser hereunder.
SECTION 7. PROCEDURES - All transactions will be consummated by payment
to, or delivery by, the Client, or such other party as the Client may
designate in writing (the "Custodian") of all cash and/or securities due to
or from the Account. ING-IM shall not act as custodian for the Account. The
Client shall establish a procedure for transmitting approvals, directives and
authorizations from the Client to ING-IM. Such procedures, once established,
shall continue until modified, in whole or in part, by the Client. The
Client retains the full right and authority to modify, amend, alter and
repeal all such procedures in its sole discretion. ING-IM shall instruct all
brokers or dealers executing orders on behalf of the Account to forward to
the Client and/or the Custodian copies of all brokerage confirmations
promptly after execution of transactions. The Client will instruct the
Custodian, if any, to provide ING-IM with such periodic reports concerning
the status of the Account as ING-IM may reasonably request. Unless otherwise
notified in writing by Client, ING-IM shall be authorized to rely upon
instruction received from the named Client representatives set forth in
EXHIBIT "D" attached hereto and incorporated herein by reference.
SECTION 8. PROXIES - ING-IM shall vote securities held in the Account in
response to proxies solicited by the issuers of such securities in accordance
with guidelines established by Client. ING-IM will provide such information
with respect to such voting as the Client may reasonably request.
SECTION 9. SERVICE TO OTHER CLIENTS - It is understood that ING-IM
provides asset management services for other clients. It is further
understood that ING-IM may take management action on behalf of such other
clients which differs from management action taken on behalf of the Account.
If the purchase or sale of securities for the Account and for one or more
such other clients is considered at or about the same time, the transactions
in such securities will be allocated among the several clients in a manner
deemed equitable by ING-IM.
SECTION 10. LIABILITY OF ING-IM - In rendering services under this
Agreement, ING-IM will not be subject to any liability to the Client to any
other party for any act or omission of ING-IM except as the result of ING-
IM's gross negligence or willful misconduct. Nothing herein shall in any way
constitute a waiver or limitation of any right of any person under applicable
Federal or State law.
SECTION 11. REPRESENTATIONS BY CLIENT - The Client hereby represents and
warrants in favor of ING-IM as follows:
(a) The Client has the power and authority (i) to enter into and
execute this Agreement and (ii) to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by it;
(b) This Agreement has been duly authorized, validly executed and
delivered by one or more authorized signatories of the Client, and this
Agreement constitutes a legal, valid and binding obligation of the Client,
enforceable against the Client in accordance with its terms; and
(c) The execution and delivery of this Agreement and the Client's
performance hereunder do not and will not be in contravention of or in
conflict with the Client's charter documents or the provisions of any
statute, judgment, order, indenture, instrument, agreement or undertaking to
which the Client is a party or by which the Client's assets or properties are
or may become bound. The Client has obtained all necessary consents and
approvals of all regulatory and governmental authorities and agencies have
jurisdiction over the Client for the Client to execute and deliver this
Agreement and to perform hereunder.
SECTION 12. FORM ADV PART II - The parties hereto acknowledge that,
concurrently with the execution of this Agreement, ING-IM is furnishing to
Client, for Client's review and inspection, a copy of Form ADV Part II most
recently filed by ING-IM with the Securities and Exchange Commission. Upon
Client's written or oral request, ING-IM shall provide to Client a copy of
any future Form ADV Part II.
SECTION 13. TERMINATION - This Agreement may be terminated by either
party on the month-end next following receipt of written notice of
termination.
SECTION 14. NOTICE - Any notice, advice or report to be given pursuant
to this Agreement shall be delivered or mailed:
To ING-IM: ING INVESTMENT MANAGEMENT LLC
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To Client: GOLDEN AMERICAN LIFE INSURANCE COMPANY
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SECTION 15. CONSTRUCTION OF AGREEMENT - This Agreement shall be
construed and the rights and obligations of the parties hereunder enforced in
accordance with the laws of the State of Georgia.
SECTION 16. ASSIGNMENT - This Agreement shall bind and inure to the
benefit of and be enforceable by the parties hereto and their permitted
successors and assigns hereunder; provided, however, that ING-IM may not
assign its rights and obligations under this Agreement unless and until it
shall have first received the prior written consent of the Client. The above
consent may be withheld for any reason, but if such consent is given, ING-
IM's assignee shall be required to assume and agree to perform all the
obligations of ING-IM hereunder and ING-IM shall remain fully liable for the
full and faithful performance of all obligations arising prior to any such
assignment.
SECTION 17. EFFECTIVE DATE - Notwithstanding the date set forth in the
first paragraph hereof, this Agreement shall be effective as of January 1,
1998.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed by their duly authorized officers, all as of the day
and year first above.
CLIENT: GOLDEN AMERICAN LIFE INSURANCE
COMPANY
By/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_________________________________
Title: Senior Vice President
________________________________
ING-IM: ING INVESTMENT MANAGEMENT LLC
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
_________________________________
Title: President and CEO
________________________________
EXHIBIT "A"
Asset Management Services
_________________________
To the extent permitted by applicable law, ING-IM shall provide all asset
management services for Client's Account, including the following:
Private placement bonds and preferred stocks in an amount not to exceed
the maximum established from time to time by Client's Investment
Committee and communicated to ING-IM.
Public Market Corporate and Government Bonds.
Public Market Preferred Stocks.
Common Stocks.
Participating and Non-participating Mortgage Loans.
Equity Real Estate.
Mortgage Backed Securities and Collateralized Mortgage Obligations and
derivatives thereof.
Cash Management services, as required, in conjunction with Mortgage
Loans, Equity Real Estate, and/or the servicing of same.
Swap Transactions.
"Cap", "Floors", "Puts", "Calls" and similar derivative transactions.
EXHIBIT "B"
STATEMENT OF POLICY ON BROKERAGE PRACTICES
As of May 1, 1975, all national securities exchanges were prohibited
from requiring their members to charge fixed rates of commissions on the
execution of transactions. This prohibition resulted from the adoption by
the Securities and Exchange Commission of Rule 19b-3 under the Securities
and Exchange Act of 1934 and the subsequent passage by Congress of the
Securities Acts Amendments to include Section 28(e) relating to the payment
of brokerage commissions on specific securities transactions in excess of
the commission which might be charged by another broker for the same
transaction. The provisions of Section 28(e) are specifically incorporated
herein by reference.
In recognition of the regulatory changes, ING-IM has adopted this
statement of policy with respect to commissions paid on portfolio
transactions executed on behalf of our clients. It is the responsibility
of individuals trading on behalf of our clients to carry out this statement
of policy, including the fiduciary responsibility of negotiating for each
agency transaction the amount of the brokerage commission.
Essentially, this policy reaffirms the principle of seeking "best
available price and most favorable execution" with respect to all portfolio
transactions. This principle recognized that commissions on portfolio
transactions must be negotiated and utilized for the ultimate benefit of
our clients.
Our brokerage commission policy is as follows:
1. We will continue to use our best efforts to obtain the best
available price and most favorable execution with respect to all portfolio
transactions executed on behalf of our clients.
2. "Best available price and most favorable execution" is defined to
mean the execution of a particular investment decision at the price and
commission which provides the most favorable total cost or proceeds reasonably
obtainable under the circumstances.
3. In selecting a broker for each specific transactions, we will use
our best judgment to choose the broker most capable of providing the
brokerage services necessary to obtain best available price and most
favorable execution. The full range and quality of brokerage services
available will be considered in making these determinations. For example,
brokers may be selected on the basis of the quality of such "brokerage
services" related to the requirements of the specific transaction as the
following: capable floor brokers or traders, competent block trading
coverage, good communications, ability to position, retail distribution and
underwriting, use of automation, research contacts, arbitrage skills,
administrative ability, or provision of market information relating to the
security. We will continue to make periodic evaluations of the quality of
these brokerage services against our own standards of execution. Brokerage
services will be obtained only from those firms which meet our standards,
maintain a reasonable capital position, and can be expected to reliably and
continuously supply these services. We will continue our endeavor to develop
and maintain brokerage contacts and relationships in the interest of providing
our clients with maximum liquidity.
4. We are not obliged to choose the broker offering the lowest
available commission rate if, in our best judgment, there is a material
risk that the total cost or proceeds from the transaction might be less
favorable than obtainable elsewhere. We will make every effort to keep
informed of rate structures offered by the brokerage community. In the
selection of brokers, we will not solicit competitive bids or "shop" the
order for a lower rate if this would, in our best judgment, be harmful to
the execution process and not in the best interests of our clients.
5. In those instances where it is reasonably determined that more
than one broker can offer the brokerage services needed to obtain the best
available price and most favorable execution, consideration will be given
to those brokers which supply research and other services in addition to
execution services. Such services may include factual and statistical
information or other items of supplementary research assistance. The
individuals trading on behalf of our clients will be informed as to the
broker/dealers who supply specific or general research assistance. However,
we will not select an executing broker on the basis of research or other
services unless such selection is otherwise consistent with best available
price and most favorable execution.
6. In no event will we enter into agreements, expressed or implied,
with broker/dealer wherein we would select a firm for execution as a means
of remuneration for recommending us as an asset manager for prospective or
present clients. However, portfolio transactions may be executed through
broker/dealers who have made such a recommendation, if otherwise consistent
with best price and most favorable execution.
7. In those instances where a client has expressed a preference for
a particular broker, that broker will be selected only when the broker is
reasonably determined in our best judgment, to be capable of providing the
best available and most favorable execution. With the exception of clients
subject to the provisions of The Employee Retirement Income Security Act of
1974 ("ERISA"), a client may direct us in writing to execute transactions
with one or more specific brokers at such commission rate or rates as may
be agreed to by the client and such brokers. With respect to clients
subject to ERISA, we may accept clients' direction to execute transactions
with one or more specific brokers upon written direction of the clients.
Such written notice shall specify the services provided by the broker(s) to
the clients, the amount of rate of commissions to be paid and the
determination by the clients that such direction is consistent with the
provisions of ERISA.
EXHIBIT "C"
ING INVESTMENT MANAGEMENT
MANAGEMENT FEE SCHEDULE
AS OF JANUARY 1, 1998
ING-IM will receive an annual fee (payable quarterly) from the Client
calculated as follows: 0.25% of the value of the Managed Assets as of the
preceding month end. "Managed Assets" shall mean the investment assets of
the Client's general account, and certain assets in a non-unitized separate
account established and maintained by Client to support certain annuity
contracts, excluding policy loans of Client. Value of the Managed Assets
for purposes of this Agreement shall be determined by the application of
generally accepted accounting principles as applied as of the end of each
quarter.
EXHIBIT "D"
Authorized Representatives of Client
____________________________________
Until otherwise notified in writing by Client, ING-IM shall be authorized
to rely upon instruction received from the following name representatives
of the Client:
[Client to specify]