Exhibit 10.1
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RESTATED AND AMENDED
GENERAL AGENCY COMMISSION AND SERVICING AGREEMENT
dated as of June 30, 1997
between
AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY
and
AMERICAN EQUITY INVESTMENT SERVICE COMPANY
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement
to which it is attached but is inserted for convenience only.
Page
Section 1. Definitions..................................................... 1
1.01 Definitions..................................................... 1
Section 2. Sales Agent Commissions......................................... 2
2.01 Obligation to Pay Sales Agent Commissions....................... 2
2.02 Conditions for Payments of AEISC Amounts........................ 3
2.03 Replacement Contracts........................................... 3
Section 3. Payment of General Agency Commissions........................... 3
3.01 General Agency Current Commissions.............................. 3
3.02 General Agency Supplemental Commissions......................... 3
3.03 General Agency Reimbursement Commissions ....................... 3
3.04 Termination of Commission Obligations........................... 4
3.05 Payment of Commissions.......................................... 4
3.06 Excess Commissions.............................................. 5
Section 4. Servicer........................................................ 5
4.01 Appointment..................................................... 5
4.02 The Servicing Functions......................................... 5
4.03 Outside Professionals and Others................................ 5
4.04 Standard of Care................................................ 5
Section 5. Representations and Warranties of American Equity............... 6
5.01 Corporate Existence............................................. 6
5.02 Financial Condition and Other Information....................... 6
5.03 Litigation; Observance of Statutes, Regulations and Orders...... 6
5.04 No Breach....................................................... 7
5.05 Corporate Action................................................ 7
5.06 Approvals....................................................... 7
5.07 ERISA........................................................... 7
5.08 Taxes........................................................... 8
5.09 Investment Company Act.......................................... 8
5.10 Public Utility Holding Company Act ............................. 0
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Xxxxxxx 0. Representations and Warranties of AEISC......................... 8
6.01 Corporate Existence............................................. 8
6.02 Financial Condition............................................. 8
6.03 Litigation...................................................... 9
6.04 No Breach....................................................... 9
6.05 Corporate Action................................................ 9
6.06 Approvals....................................................... 9
6.07 Insurance Agency Licenses ...................................... 9
Section 7. Certain Covenants of AEISC...................................... 9
7.01 Delivery of Information, Etc.................................... 9
7.02 Corporate Existence, Etc........................................ 10
7.03 Insurance....................................................... 10
7.04 Prohibition of Fundamental Changes ............................. 10
Section 8. Certain Covenants of American Equity............................ 10
8.01 Delivery of Information......................................... 10
8.02 Litigation...................................................... 11
8.03 Corporation Existence, Etc...................................... 11
8.04 Insurance....................................................... 12
8.05 Correction of Errors............................................ 12
8.06 Amendment of Contract Forms..................................... 12
Section 9. American Equity Option.......................................... 12
Section 10. Termination..................................................... 12
Section 11. Miscellaneous................................................... 12
11.01 Waiver.......................................................... 12
11.02 Notices......................................................... 12
11.03 Amendments, Etc................................................. 13
11.04 Successors and Assigns.......................................... 13
11.05 Assignments..................................................... 13
11.06 Captions........................................................ 13
11.07 Counterparts.................................................... 13
11.08 Governing Law; Submission to Jurisdiction....................... 13
11.09 Waiver of Jury Trial............................................ 13
SCHEDULES
1.01(a) - Eligible Contracts
1.01(b) - Gross Agent Commission Schedule
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RESTATED AND AMENDED GENERAL AGENCY COMMISSION AND SERVICING AGREEMENT,
dated as of June 30, 1997, between: AMERICAN EQUITY INVESTMENT LIFE INSURANCE
COMPANY, an Iowa insurance corporation ("American Equity"), and AMERICAN EQUITY
INVESTMENT SERVICE COMPANY, an Iowa corporation ("AEISC").
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, each of the parties hereto agrees as follows:
Section 1. Definitions.
1.01 Definitions. As used herein, the following terms shall have the
following meanings (all terms defined in this Section 1.01 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and vice versa):
"Account Surrender Value" shall mean the Accumulated Value of any
Eligible Contract (or portion thereof) that has been terminated (whether in
whole or in part or by surrender, withdrawal or death).
"Accumulated Value" shall mean, with respect to any Eligible Contract
as at any date of determination thereof, the accumulated value as defined in
such Eligible Contract.
"AEISC Amount" shall mean, with respect to any Eligible Contract, the
greater of (i) 5% of the Premium collected by American Equity in respect of the
sale of such Eligible Contract and (ii) 50% of the Sales Agent Commission
payable with respect to such Eligible Contract.
"Affiliate " of American Equity shall mean any other person controlling
or controlled by or under common control with American Equity. For the purposes
of this definition, "control" when used with respect to any specified person
means the power to direct the management and policies of such person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling and "controlled" have meanings
correlative to the foregoing.
"Annual Statement" shall have the meaning assigned thereto in Section
5.02 hereof.
"Commission Accumulated Value" shall mean, as at any Commission Payment
Date an amount equal to the aggregate of the Accumulated Values of all Eligible
Contracts that are in force on such Commission Payment Date.
"Commission Agreement": An agreement between American Equity and any
Person (other than the Borrower) the terms of which govern the rights and
obligations of such Person with American Equity in respect of such Person's
acting as an agent of American Equity for the sale of Eligible Contracts.
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"Commission Payment Dates" shall mean the last day of each calendar
quarter beginning with the second calendar quarter of 1997.
"Eligible Contract" shall mean a deferred contract issued by American
Equity and sold by a Sales Agent to a person in a jurisdiction in which American
Equity and AEISC (or its duly-appointed representative) are duly licensed to
issue such contracts or act as an insurance agency therein, as applicable, and
that is a category of deferred contracts specified in Schedule 1.01(a) hereto,
and any Replacement Contract issued in respect of any such contract.
"Gross Agent Commission Schedule" shall mean the Gross Agent Commission
Schedule in effect with respect to Eligible Contracts as of the date hereof as
set forth on Schedule 1.02 hereto.
"Order" shall mean any order, writ, injunction, decree, judgment, award
or determination.
"Person": Any natural person, corporation, partnership, joint venture,
firm, association, trust, unincorporated organization, government or
governmental agency or political subdivision or any other entity, whether acting
in an individual, fiduciary or other capacity.
"Replacement Contract" shall mean any individual annuity contract with
respect to which a Sales Agent earns a commission and which is (i) issued by
American Equity or an Affiliate to an insured coincident with, or within six
months (or such longer period as American Equity may determine in accordance
with its normal business procedures) after, the termination for any reason of an
Eligible Contract with the same insured, or (ii) any other individual annuity
contract issued by American Equity to an insured that American Equity in good
faith in accordance with its normal business procedures considers to be a
replacement for a terminated Eligible Contract with the same insured.
"Sales Agent" shall mean each person (other than American Equity or
AEISC) who is a party to a Commission Agreement.
"Sales Agent Commission": With respect to the initial sale of any
Eligible Contract, the commission payable by American Equity in connection with
such sale to the Agent who sold such Eligible Contract, which commission shall
not exceed, in respect of such Eligible Contract, the greater of 10% or the
commission rate indicated on the Gross Agent Commission schedule.
"SAP" shall mean those accounting practices required or permitted by
the Division of Insurance, Department of Commerce of the State of Iowa
consistently applied throughout the specified period and in the immediately
prior comparable period.
Section 2. Sales Agent Commissions.
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2.01 Obligation to Pay Sales Agent Commissions. Subject to Section 2.02
below, AEISC shall pay, or cause to be paid, the AEISC Amount on each Eligible
Contract to the Sales Agent entitled to the Sales Agent Commission thereon at
the time such Sales Agent Commission is to be paid pursuant to the terms of such
Sales Agent's Commission Agreement.
2.02 Conditions for Payments of AEISC Amounts. AEISC's obligation to
pay the AEISC Amount under Section 2.01 hereof with respect to any Eligible
Contract is subject to the satisfaction of the following conditions:
(a) the presentment to AEISC by American Equity no later than
10:00 a.m., Central Standard Time, on the Business Day next preceding
the Business Day on which such AEISC Amount is to be paid (but no more
frequently than two times in any calendar week) of a Disbursement
Certificate in respect of such AEISC Amount, together with a copy of
the requisite disbursement schedule attached thereto duly completed;
(b) receipt by AEISC of evidence satisfactory to each of them
that the portion of such Sales Agent Commission to be funded by
American Equity has been made available by American Equity for payment
to the Sales Agent entitled to such Sales Agent Commission;
(c) no Event of Default shall have occurred and be continuing.
(d) American Equity shall have a rating of "A-" or better by
A.M. Best & Company.
2.03 Replacement Contracts. AEISC shall have no obligation to pay a
AEISC Amount in respect of any Replacement Contract.
Section 3. Payment of General Agency Commissions.
3.01 General Agency Current Commissions.American Equity shall pay to
AEISC general agency current commissions ("Current Commissions") no later than
10:00 a.m., Central Standard Time, on each Commission Payment Date in an amount
equal to .3875% of the Commission Accumulated Value determined as of the
preceding Commission Payment Date.
3.02 General Agency Supplemental Commissions.
(a) American Equity shall pay to AEISC general agency supplemental
commissions ("Supplemental Commissions"), no later than 10:00 a.m., Central
Standard Time, on each Commission Payment Date in an amount equal to the
following percentages of the Account Surrender Value of each Eligible Contract
(or portion thereof) that has been terminated (whether in whole or in part or by
surrender, withdrawal or death) during the calendar quarter immediately
preceding the Commission Payment Date:
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(i) For Eligible Contracts terminated during
the first year after the end of the calendar
quarter in which such Eligible Contracts
were initially issued...............................5%
(ii) For Eligible Contracts terminated during
the second year after the end of the calendar
quarter in which such Eligible Contracts
were initially issued..............................4%
(iii) For Eligible Contracts terminated during
the third year after the end of the calendar
quarter in which such Eligible Contracts
were initially issued...............................3%
(iv) For Eligible Contracts terminated during
the fourth year after the end of the calendar
quarter in which such Eligible Contracts
were initially issued...............................2%
(v) For Eligible Contracts terminated during
the fifth year after the end of the calendar
quarter in which such Eligible Contracts
were initially issued...............................1%
(vi) For Eligible Contracts terminated after the
fifth year after the end of the calendar
quarter in which such Eligible Contracts
were initially issued...............................0%
(b) American Equity shall pay to AEISC additional Supplemental
Commissions in an amount equal to .05% of the Commission Accumulated Value;
provided that no Supplemental Commissions shall be payable on any Commission
Payment Date unless (A) on such Commission Payment Date an Event of Default has
occurred and/or is continuing; (B) on such Commission Payment Date or on any
date prior thereto, American Equity has ceased to remain actively engaged in the
business of issuing Eligible Contracts; or (C) on such Commission Payment Date
or on any date prior thereto, American Equity, directly or indirectly,
unreasonably limits, impedes, hampers or restricts the ability of the Sales
Agents to sell Eligible Contracts.
3.03 General Agency Reimbursement Commissions. American Equity shall
pay to AEISC general agency reimbursement commissions ("Reimbursement
Commissions") with respect to all Voided Eligible Contracts (as defined below)
no later than 10:00 a.m., Central Standard Time, on each Commission Payment Date
in an amount equal to the aggregate of the AEISC Amounts of such Voided Eligible
Contracts. For the purposes of this Section 3.04, a "Voided Eligible Contract"
shall mean, as at any Commission Payment Date, any Eligible
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Contract which was voided during the calendar quarter ending on the preceding
Commission Payment Date because the owner of such Eligible Contract returned
such Eligible Contract to American Equity during the examination period therefor
in accordance with the terms of such Eligible Contract entitling such owner to a
refund of the premium paid thereon and with respect to which AEISC paid the
AEISC Amount.
3.04 Termination of Commission Obligations. On January 31, 2005, no
further Current Commissions, Supplemental Commissions, or Reimbursement
Commissions will be due from American Equity to AEISC.
3.05 Payment of Commissions.
(a) American Equity's obligation to make all payments referred
to in this Section 3, when such payments shall become due and payable
in accordance herewith, shall be absolute and unconditional and shall
not be subject to any abatement or diminution by set-off, deduction,
claim, counterclaim, recoupment, agreement, defense, suspension,
deferment, interruption or otherwise.
(b) American Equity shall have no right to be released,
relieved or discharged from its obligation to make such payments for
any reason whatsoever, including, without limitation, (i) any default,
misrepresentation, negligence, misconduct or other action or inaction
of any kind by AEISC, whether under or in connection with this or any
other agreement to which AEISC is a party; (ii) the invalidity,
unenforceability, impossibility of performance, illegality, termination
or amendment of, or any allegation or contest of invalidity,
unenforceability, impossibility of performance, illegality of, any
agreement to which AEISC is a party; (iii) any applicable law now or
hereafter in force; (iv) the occurrence or continuance of an event of
default or any default or event of default under any agreement to which
AEISC is a party; (v) the compromise, settlement, release,
modification, amendment (whether material or otherwise) or termination
of any or all of the obligations, conditions, covenants or agreements
of any Person under or arising out of any agreement to which AEISC is a
party (other than any modification or amendment of this Agreement made
in accordance with the terms hereof); (vi) the failure by any Person to
give notice to American Equity of the occurrence of any default or
event of default under any agreement to which AEISC is a party; (vii)
the waiver of the payment, performance or observance of any of the
obligations, conditions, covenants or agreements of any Person
contained in any agreement to which AEISC is a party (including,
without limitation, any waiver of such obligations under this Agreement
made in accordance with the provisions hereof); (viii) the taking or
the omission to take any of the actions referred to in any agreement to
which AEISC is a party; or (ix) any other cause or circumstance
foreseen or unforeseen, whether similar or dissimilar to any of the
foregoing.
(c) American Equity shall pursue any claims which it may now
or hereafter have against AEISC or any other Person independently of
the rights of AEISC to receive payments from American Equity pursuant
to this Section 3.
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[3.06 Excess Commissions. To the extent that American Equity
pays to AEISC, on any Commission Payment Date, general agency
commissions in an amount in excess of the aggregate of all amounts
(whether denominated as commissions or otherwise) required to be paid
to AEISC pursuant to all provisions of this Agreement on such
Commission Payment Date, such excess shall be deemed to be paid as
Current Commissions; payments of such excess amounts shall not reduce
American Equity's obligation to pay any other amounts required to be
paid pursuant to this Agreement on any subsequent date].
Section 4. Servicer.
4.01 Appointment. AEISC hereby, to the exclusion of any other Person
except to the extent provided in the Security Agreement, appoints the Servicer
to perform the Servicing Functions in the name and on behalf of AEISC, and the
Servicer hereby accepts such appointment, all upon the terms and conditions set
forth in this Section 4.
4.02 The Servicing Functions . The Servicing Functions to be performed
by the Servicer on behalf of AEISC at no cost to AEISC shall be the management
and administrative functions that are described below:
(a) the preparation and delivery of any payment, notice,
instrument, form, document, agreement, invoice or other item required
to be delivered to any Person pursuant to the terms of the this
Agreement and the accurate maintenance of all financial, business and
corporate records of AEISC; and
(b) all other administrative obligations, duties, and
functions of AEISC.
AEISC shall be entitled, upon request, to full access to and use of all computer
programs and software, training manuals, data, records, forms correspondence,
files, and other materials used by the Servicer in performing the Servicing
Functions.
4.03 Outside Professionals and Others. The Servicer shall be entitled,
in its sole discretion, to engage, at the expense of the Servicer, such outside
legal counsel, accountants, actuaries, consultants, other professionals, and
other Persons as the Servicer shall, from time to time, deem necessary or
appropriate in the performance of the Servicing Functions (collectively, the
"Outside Workers"). Such Outside Workers may, in the sole discretion of the
Servicer, be Outside Workers who perform such or similar functions for the
Servicer, and no conflict shall be deemed to exist on account thereof. In lieu
of or in addition to engaging Outside Workers, the Servicer may employ its own
or its affiliates' employees for purposes of the foregoing, and no conflict
shall be deemed to exist on account thereof.
4.04 Standard of Care. The Servicer will exercise and give the same
care and attention to its obligations hereunder as it gives to all other
corporate obligations of a comparable nature, provided it shall not be held
responsible for any losses arising from any action taken by it in good faith
absent misconduct or negligence.
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Section 5. Representations and Warranties of American Equity. American Equity
represents and warrants to AEISC as of the date hereof as follows:
5.01 Corporate Existence. American Equity: (a) is an insurance
corporation duly organized and validly existing under the laws of the State of
Iowa; (b) has all requisite corporate power, and has all governmental licenses
and authorizations, consents and approvals necessary to own its assets and carry
on its business as now being or as proposed to be conducted; and (c) is
qualified to do business in all jurisdictions in which the
nature of the business conducted by it makes such qualifications
necessary.
5.02 Financial Condition and Other Information.
(a) American Equity has delivered to AEISC a copy of: (i) the
annual statement of American Equity submitted to the Iowa Division of
Insurance (the "Annual Statement") for the year ended December 31, 1995
and (ii) the affirmative certification of its actuary as to the
adequacy of the reserves for liabilities determined in accordance with
SAP reflected on the Annual Statement for the year ended December 31,
1995. The Annual Statement and Actuarial Certification described above
in this paragraph (a) are hereinafter collectively called the
"Financial Statements." The Financial Statements (including in each
case, without limitation, the related schedules and notes) fairly
present the financial condition of American Equity. The Financial
Statements described in clause (i) have been prepared in accordance
with SAP consistently applied by American Equity throughout the periods
involved.
(b) There are no material liabilities, contingent or
otherwise, of American Equity as of December 31,1995 not reflected in
the Annual Statement of American Equity as of said date referred to in
clause (i) of paragraph (a). Since said date, there has been no change
in the financial condition, operations, business or prospects of
American Equity from that set forth in the Financial Statements as at
said date, other than changes in the ordinary course of business which
have not, either individually or in the aggregate, been materially
adverse to the financial condition, operations, business or prospects
of American Equity.
(c) American Equity has prior to the execution and delivery of
this Agreement delivered to AEISC a copy of the forms of the Commission
Agreements and the Eligible Contracts.
5.03 Litigation; Observance of Statutes, Regulations and Orders. There
are no legal or arbitral proceedings or any proceedings by or before any court,
arbitrator or Governmental Body, now pending or (to the knowledge of American
Equity) threatened against American Equity which, if adversely determined, could
be expected to have a material adverse effect on the financial condition,
operations, business or prospects of American Equity.
American Equity is not in default under any Order of any
court, arbitrator or Governmental Body. American Equity is not in violation of
any statute or other rule or
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regulation of any Governmental Body the violation of which could be expected to
have a material adverse effect on the financial condition, operation, business
or prospects of American Equity.
5.04 No Breach. Neither the execution and delivery of this Agreement,
the consummation of the transactions herein contemplated nor the compliance with
the terms and provisions hereof will conflict with or result in a breach of, or
require any consent under, the charter or by-laws of American Equity, or any
statute, other rule or regulation or any Order of any Governmental Body, or any
agreement or instrument to which American Equity is a party or by which it is
bound or to which it is subject, or constitute a default under any such
agreement or instrument, or result in the creation or imposition of any Lien
upon any of the revenues or assets of American Equity pursuant to the terms of
any such agreement or instrument.
5.05 Corporate Action. American Equity has all necessary corporate
power and authority to execute, deliver and perform its obligations under this
Agreement; the execution, delivery and performance of this Agreement has been
duly authorized by all necessary corporate action on its part, and this
Agreement has been duly and validly executed and delivered by American Equity
and constitutes its legal, valid and binding obligation, enforceable in
accordance with its terms.
5.06 Approvals. Except for the reports required under Chapter 521A of
the Iowa Code (1995) applicable to Insurance Holding Company Systems, no
authorization, approvals or consents of, and no filings or registrations with,
any Governmental Body are necessary for the execution, delivery or performance
by American Equity of this Agreement or for the validity and enforceability
thereof.
5.07 ERISA. No employee benefit plan established or maintained by
American Equity or to which American Equity has made contributions, which is
subject to Part 3 of Subtitle B of Title 1 of ERISA, or Section 412 of the Code,
including, without limitation, to the knowledge of American Equity, any
Multiemployer Plan, has an accumulated funding deficiency (as such term is
defined in Section 302 of ERISA or Section 412 of the Code), or had such a
deficiency as of the last day of the most recent fiscal year of such plan
heretofore ended, and each such plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and any applicable federal or
state law. No liability to PBGC (other than required insurance premiums, all of
which have been paid when due) has been incurred with respect to any such plan
and there has not been any reportable event within the meaning of ERISA, or any
other event or condition, which presents a material risk of termination of any
such plan by PBGC. To the knowledge of American Equity after due inquiry,
neither any such plan nor any trust created thereunder, nor any trustee or
administrator thereof, has engaged in a prohibited transaction (as such term is
defined in Section 4975 of the Code) nor will the transactions contemplated by
this Agreement constitute such a prohibited transaction, in any such case that
could subject any such plan, trust, trustee (to the extent indemnified by
American Equity), administrator or American Equity to any tax or penalty on
prohibited transactions imposed under Section 4975 or ERISA or by Section 502(i)
of ERISA which could have a material adverse effect on the business, operations
or properties of American Equity. No liability has been incurred by American
Equity with respect to any Multiemployer Plan, within the meaning of Section
4001(a)(3) of ERISA as a result of the complete or partial withdrawal by
American Equity from such Multiemployer Plan under Section 4201 or 4204 of ERISA
that could have a material adverse effect on the business, operations or
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properties of American Equity; nor has American Equity been notified by any such
Multiemployer Plan that such Multiemployer Plan is in reorganization or
insolvency under and within the meaning of Section 4241 or 4245 of ERISA or that
such Multiemployer Plan intends to terminate or has been terminated under
Section 4041A or ERISA.
5.08 Taxes. American Equity has filed all United States Federal income
tax returns and all other tax returns that are required to have been filed in
any jurisdiction. American Equity has paid all taxes due pursuant to such
returns before they have become delinquent and pursuant to any assessment
received by American Equity. The charges, accruals and reserves on the books of
American Equity in respect of taxes and other governmental charges are, in the
opinion of American Equity, adequate.
5.09 Investment Company Act. American Equity is not an "investment
company", or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
5.10 Public Utility Holding Company Act. American Equity is not a
"holding company," or an "affiliate" of a "holding company" or a "subsidiary
company" of "holding company," within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
Section 6. Representations and Warranties of AEISC. AEISC represents and
warrants to American Equity as of the date hereof as follows:
6.01 Corporate Existence. Subject, in the case of clauses (a) and (b)
hereof, to Section 6.07 hereof, AEISC: (a) is a corporation duly organized and
validly existing under the laws of the State of Iowa; (b) has all requisite
corporate power, and has all governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being or
as proposed to be conducted; and (c) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary. The Company has no Subsidiaries.
6.02 Financial Condition. The balance sheet of AEISC as at December 31,
1996 heretofore furnished to American Equity, is complete and correct and fairly
presents the financial condition of AEISC as at said date, all in accordance
with generally accepted accounting principles and practices. AEISC did not have
on said date any contingent liabilities, liabilities for taxes, unusual forward
or long-term commitments or unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
said balance sheet as at said date. Since December 31, 1996, there has been no
material adverse change in the financial condition, operations, business or
prospects of AEISC from that set forth in said financial statement as at said
date. AEISC has not paid any salary or any
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other form of compensation for services to any Person; incurred any obligation,
contractually or otherwise, to any Person except as was necessary or advisable
for the compliance with Section 6.01 hereof; or created or maintained any Plan
or been a participant in any Multiemployer Plan.
6.03 Litigation. There are no legal or arbitral proceedings or any
proceedings by or before any court, arbitrator or Governmental Body, now pending
or (to the knowledge of AEISC) threatened against AEISC.
6.04 No Breach. None of the execution and delivery of this Agreement,
the consummation of the transactions herein contemplated and compliance with the
terms and provisions hereof will conflict with or result in a breach of, or
require any consent under, the charter or by-laws of AEISC, or any applicable
statute, other rule or regulation, or any Order of any Governmental Body, or any
agreement or instrument to which AEISC is a party or by which it is bound or to
which it is subject, or constitute a default under any such agreement or
instrument, or (except for the Liens created pursuant to the Security Documents)
result in the creation or imposition of any Lien upon any other revenues or
assets of AEISC pursuant to the terms of any such agreement or instrument.
6.05 Corporate Action. AEISC has all necessary corporate power and
authority to execute, deliver and perform its obligations under this Agreement;
the execution, delivery and performance by AEISC of this Agreement has been duly
authorized by all necessary corporate action on its part; and this Agreement has
been duly and validly executed and delivered by AEISC and constitutes, when
executed and delivered, its legal, valid and binding obligation, enforceable in
accordance with its terms.
6.06 Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any Governmental Body are necessary for the
execution, delivery or performance by AEISC of this Agreement or for the
validity or enforceability thereof, except as provided in Section 6.07 hereof.
6.07 Insurance Agency Licenses. AEISC has made application to the
appropriate state authorities in each jurisdiction in which it anticipates it
will conduct business to enable it or its duly appointed representative to act
as a licensed insurance agency in such jurisdiction.
Section 7. Certain Covenants of AEISC.
7.01 Delivery of Information, Etc. AEISC will:
(a) furnish to American Equity, its counsel, accountants and
other representatives full access to all of its properties, books,
contracts, commitments, reports and records and shall furnish American
Equity with all information concerning its business and affairs as
American Equity may request; and
(b) pay and otherwise perform fully and in a timely manner all
of its obligations under this Agreement.
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7.02 Corporate Existence, Etc. AEISC will:
(a) preserve and maintain its corporate existence and all of
its material rights, privileges and franchises;
(b) comply with the requirements of all applicable statutes,
other rules and regulations and Orders of any court, arbitrator or
Governmental Body if failure to comply with such requirements would not
adversely affect the financial condition, operations, business or
prospects of AEISC;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any
of its property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge or levy the payment of
which is being contested in good faith and by proper proceedings and
against which adequate reserves are being maintained;
(d) maintain all of its properties used or useful in its
business in good working order and condition, ordinary wear and tear
excepted; and
(e) permit representatives of American Equity, during normal
business hours, to examine, copy and make extracts from its books and
records, to inspect its properties, and to discuss its business and
affairs with its officers, all to the extent reasonably requested by
American Equity.
7.03 Insurance. AEISC will keep insured, by financially sound and
reputable insurers, all property of a character usually insured by corporations
engaged in the same or similar business similarly situated against loss or
damage of the kinds and in the amounts customarily insured against by such
corporations and carry such other insurance as is usually carried by such
corporations.
7.04 Prohibition of Fundamental Changes. AEISC will not enter into any
transaction of merger or consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution). AEISC will not
acquire any business or assets from, or capital stock of, or be a party to any
acquisition of, any Person. AEISC will not convey, sell, lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or a
substantial part of its business or assets, whether now owned or hereafter
acquired.
Section 8. Certain Covenants of American Equity.
8.01 Delivery of Information. American Equity will furnish to AEISC:
(a) on or prior to the last day of each Calendar Quarter, a
Settlement Statement in form and content satisfactory to the parties;
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(b) within 60 days after the end of each of American Equity's
fiscal years, copies of the Annual Statement of American Equity;
(c) within 60 days after the end of each of American Equity's
fiscal quarters, copies of the quarterly financial statements of
American Equity prepared in accordance with SAP as filed with the Iowa
Division of Insurance for such accounting period;
(d) as soon as available and in any event within 120 days
after each calendar year, a report of Ernst & Young or other
independent accountants of recognized national standing selected by
American Equity and reasonably satisfactory to AEISC, which shall
indicate that based upon a review by such auditors of appropriate
American Equity financial records all amounts due from American Equity
to AEISC hereunder were properly computed and paid;
(e) at any time and from time to time upon the request of
AEISC, a report of an independent actuarial firm of recognized national
standing selected by American Equity and reasonably satisfactory to
AEISC containing a comparison of the actuarial experience with respect
to Eligible Contracts during any given calendar period with the
assumptions with respect thereto; and
(f) such other documentation and information relating to
Eligible Contracts as AEISC shall reasonably request.
8.02 Litigation. American Equity will promptly give to AEISC notice of
all legal or arbitral proceedings, and of all proceedings by or before any
court, arbitrator or Governmental Body affecting American Equity except
proceedings which, if adversely determined, would not have a material adverse
effect on the financial condition, operations, business or prospects of American
Equity and any material development in respect of such legal or other
proceedings.
8.03. Corporate Existence, Etc. American Equity will: preserve and
maintain its corporate existence and all rights, privileges and franchises;
comply with the requirements of all applicable statutes, other rules and
regulations and orders of any court, arbitrator or Governmental Body if failure
to comply with such requirements would adversely affect the financial condition,
operations, business or prospects of American Equity; pay and discharge all
taxes, assessments and governmental charges or levies imposed on it or on its
income or profits or on any of its property prior to the date on which penalties
attach thereto, except for any such tax, assessment, charge or levy the payment
of which is being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained; maintain all of its properties
used or useful in its business in good working order and condition, ordinary
wear and tear excepted; and permit representatives of AEISC during normal
business hours to examine, copy and make extracts from its books and records
(which shall be maintained at the office of American Equity and shall include
all records that are necessary to comply with all of American Equity's
obligations under the Basic Documents, including manually maintained list,
computer generated printouts that identify all of the Eligible Contracts to
inspect its properties, and to discuss its business and affairs with its
officers, all
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to the extent reasonably requested by AEISC. American Equity will not default or
permit any event of default to occur or be continuing under any indebtedness for
borrowed money of American Equity or its parent company, American Equity
Investment Life Holding Company, a Delaware corporation.
8.04 Insurance. American Equity will keep insured by financially sound
and reputable insurers all property of a character usually insured by
corporations engaged in the same or similar business similarly situated against
loss or damage of the kinds and in the amounts customarily insured against by
such corporations and carry such other insurance as is usually carried by such
corporations.
8.05 Correction of Errors. As soon as reasonably practicable after
becoming aware of an error in any Settlement Statement previously delivered to
AEISC pursuant to Section 8.01(a) hereof, the effect of which error is that
American Equity shall have defaulted in the payment when due and payable of any
amount payable by it under this Agreement, American Equity will correct any such
error by making such payment in the prescribed manner.
8.06 Amendment of Contract Forms. American Equity will not, without the
prior written approval of AEISC (which consent shall not be unreasonably
withheld), amend, modify, supplement, terminate or waive any of the provisions
of the forms of Eligible Contracts as such forms exist on the date hereof.
Section 9. American Equity Option. Notwithstanding anything in this Agreement to
the contrary, in the event of a default by AEISC under this Agreement or any
other agreement to which AEISC is a party, American Equity shall have the right
(but not the obligation) to take such action, on behalf of AEISC or on its own
behalf or otherwise, as it deems necessary or desirable to cure such default.
Section 10. Termination. The obligations of AEISC and American Equity shall
terminate on December 31, 2002.
Section 11. Miscellaneous.
11.01 Waiver. No failure on the part of either party to this Agreement
to exercise and no delay in exercising, and no course of dealing with respect
to, any right, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.
11.02 Notices. All notices and other communications provided for herein
(including, without limitation, any modifications of, or waivers or consents
under, this Agreement) shall be given or made by telex, telecopy, telegraph,
cable or in writing and telexed, telecopied, telegraphed, cabled, mailed or
delivered to the intended recipient at the "Address for Notices" specified below
its name on the signature pages hereof; or, as to any party, at such other
address as shall be designated by such party in a notice to each other party.
Except as
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otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telex or telecopier, delivered to the
telegraph or cable office or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.
11.03 Amendments, Etc. No provision of this Agreement may be amended or
modified except by an instrument in writing and signed by AEISC and American
Equity.
11.04 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
11.05 Assignments. Neither party to this Agreement may assign its
rights or obligations hereunder without the prior written consent of the other
party.
11.06 Captions. The table of contents and captions and section headings
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
11.07 Counterparts. This Agreement may be executed in any number of
counterparts, all of which all of taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
11.08 Governing Law; Submission to Jurisdiction. This Agreement shall
be governed by, and construed in accordance with, the law of the State of Iowa.
11.09 Waiver of Jury Trial. EACH OF AEISC AND AMERICAN EQUITY HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
AMERICAN EQUITY INVESTMENT AMERICAN EQUITY INVESTMENT
LIFE INSURANCE COMPANY SERVICE COMPANY
By: /s/ X.X. Xxxxx By: /s/ X.X. Xxxxx
------------------------ -----------------------
X.X. Xxxxx, President X.X. Xxxxx, President
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FIRST AMENDMENT TO
RESTATED AND AMENDED GENERAL AGENCY
COMMISSION AND SERVICING AGREEMENT
THIS FIRST AMENDMENT (this "First Amendment") dated as of December 31,
1997, amends and modifies a certain Restated and Amended General Agency
Commission and Servicing Agreement, dated as of June 30, 1997 (as so amended,
the "General Agency Agreement") between: AMERICAN EQUITY INVESTMENT LIFE
INSURANCE COMPANY, an Iowa insurance corporation ("American Equity"), and
AMERICAN EQUITY INVESTMENT SERVICE COMPANY, an Iowa corporation ("AEISC"). Terms
not otherwise expressly defined herein shall have the meanings set forth in the
General Agency Agreement.
FOR VALUE RECEIVED, the American Equity and AEISC agree that the
General Agency Agreement is amended as follows:
ARTICLE I - AMENDMENTS TO THE GENERAL AGENCY AGREEMENT
1.1 Definitions. Section 1.01 is amended as follows:
(A) The term "Premium Value" shall be inserted alphabetically within
Section 1.01 and shall state as follows:
"Premium Value" shall mean, with respect to any Eligible
Contract as at any date of determination thereof, the gross amount of
the initial premium deposit made in connection with such Eligible
Contract.
(B) The term "Aggregate Premium Value" shall be inserted alphabetically
within Section 1.01 and shall state as follows:
"Aggregate Premium Value" shall mean, as at any Commission
Payment Date an amount equal to the aggregate of the Premium Values of
all Eligible Contracts that are in force on such Commission Payment
Date.
(C) The term "Modified AEISC Amount" shall be inserted alphabetically
within Section 1.01 and shall state as follows:
"Modified AEISC Amount" shall mean, with respect to all
Eligible Contracts for which Sales Agent Commissions were paid during
the third and fourth calendar quarters of 1997, an amount equal to the
difference between 100% of such Sales Agent Commissions and the AEISC
Amount previously paid with respect to such
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Eligible Contracts; provided, however, that the sum of the Modified
AEISC Amount and the AEISC Amount with respect to such Eligible
Contracts shall not exceed $11,500,000.
1.2 Amendment of AEISC Obligations. The obligations of AEISC to pay the
AEISC amount are hereby amended by deleting Section 2.01 of the General Agency
Agreement in its entirety and inserting in lieu thereof the following:
2.01 Obligation to Pay Sales Agent Commissions. Subject to
Section 2.02 below, AEISC shall pay, or cause to be paid: (i) the AEISC
Amount on each Eligible Contract to the Sales Agent entitled to the
Sales Agent Commission thereon at the time such Sales Agent Commission
is to be paid pursuant to the terms of such Sales Agent's Commission
Agreement; and (ii) the Modified AEISC Amount to American Equity on the
date of the First Amendment to this General Agency Agreement.
1.3 Amendment of Current Commission Requirements. The obligations of
American Equity to pay Current Commissions to AEISC pursuant to Section 3.01 of
the General Agency Agreement are hereby amended by deleting Section 3.01 of the
General Agency Agreement in its entirety and inserting in lieu thereof the
following:
3.01 General Agency Current Commissions.American Equity shall
pay to AEISC general agency current commissions ("Current Commissions")
no later than 10:00 a.m., Central Standard Time, on each Commission
Payment Date in an amount equal to .325% of the Aggregate Premium Value
determined as of the preceding Commission Payment Date. Notwithstanding
the preceding sentence, with respect to the Aggregate Premium Value of
all Eligible Contracts produced during all calendar quarters of 1996
and 1997, American Equity shall pay to AEISC Current Commissions no
later than 10:00 a.m. Central Standard Time, on each Commission Payment
Date beginning with March 31, 1998 and continuing through and including
the Commission Payment Date on December 31, 2002, in an amount equal to
.7% of the Aggregate Premium Value for such Eligible Contracts.
1.3 Amendment of Supplemental Commission Requirements. The obligations
of American Equity to pay Supplemental Commissions to AEISC pursuant to Section
3.02 of the General Agency Agreement are hereby amended by deleting Section 3.02
of the General Agency Agreement in its entirety and inserting in lieu thereof
the following:
3.02 General Agency Supplemental Commissions.
(a) If the aggregate amount of the Account Surrender Values of
each Eligible Contract (or portion thereof) that has been terminated
(whether in whole or in part or by surrender, withdrawal or death)
during the calendar quarter immediately preceding the Commission
Payment Date equals or exceeds an amount equal to 1.88% of the
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Commission Accumulated Value, American Equity shall pay to AEISC
general agency supplemental commissions ("Supplemental Commissions"),
no later than 10:00 a.m., Central Standard Time, on each Commission
Payment Date in an amount equal to 50% of the surrender charges paid to
American Equity with respect to each such Eligible Contract (or portion
thereof) that has been terminated (whether in whole or in part or by
surrender, withdrawal or death) during such calendar quarter.
(b) American Equity shall pay to AEISC additional Supplemental
Commissions in an amount equal to .05% of the Commission Accumulated
Value; provided that no Supplemental Commissions shall be payable on
any Commission Payment Date unless (A) on such Commission Payment Date
an Event of Default has occurred and/or is continuing; (B) on such
Commission Payment Date or on any date prior thereto, American Equity
has ceased to remain actively engaged in the business of issuing
Eligible Contracts; or (C) on such Commission Payment Date or on any
date prior thereto, American Equity, directly or indirectly,
unreasonably limits, impedes, hampers or restricts the ability of the
Sales Agents to sell Eligible Contracts.
(c) American Equity shall pay to AEISC other Supplemental
Commissions no later than 10:00 a.m., Central Standard Time, on each
Commission Payment Date in an amount equal to $25,000.
1.4 Correction of Termination Date. Section 10 of the General Agency
Agreement is hereby corrected by inserting the date "January 31, 2005" in lieu
of "December 31 2002" as the termination date of the General Agency Agreement.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
Each of the parties hereto warrants and represents to the other that it
is duly authorized to execute and deliver this Amendment and to perform its
respective obligations under the General Agency Agreement as amended hereby, and
that this Amendment constitutes the legal, valid and binding obligation of such
party enforceable in accordance with its terms.
ARTICLE III - CONDITIONS PRECEDENT
This Amendment shall be come effective on the date first set forth
above, provided, however, that the effectiveness of this Amendment is subject to
the satisfaction of each of the following conditions precedent:
3.1 Warranties. After giving effect to this Amendment, the
representations and warranties in Sections 5 and 6 of the General Agency
Agreement shall be true and correct as though make on the date hereof, except
for changes that are permitted by the terms of the General Agency Agreement.
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3.2 No Breach. After giving effect to this Amendment, no material
breach by either party shall have occurred and be continuing under the General
Agency Agreement. .
3.3 Execution and Delivery. This Amendment shall have been executed and
delivered by American Equity and AEISC.
ARTICLE IV - GENERAL
4.2 Counterparts. This Amendment may be executed in as many
counterparts as may be deemed necessary or convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed on original but all such counterparts shall constitute but one and the
same instrument.
4.3 Severability. Any provision of this Amendment which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
4.4 Governing Law. This Amendment shall be a contract made under the
laws of the State of Iowa, which laws shall govern all the rights and duties
hereunder.
4.5 Successors; Enforceability. This Amendment shall be binding upon
the parties and shall inure to the benefit of the parties their respective
successors and assigns. Except as hereby amended, the General Agency Agreement
shall remain in full force and effect and is hereby ratified and confirmed in
all respects.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed at West Des Moines, Iowa by their respective officers thereunto duly
authorized as of the date first written above.
AMERICAN EQUITY INVESTMENT AMERICAN EQUITY INVESTMENT
LIFE INSURANCE COMPANY SERVICE COMPANY
By: /s/ X.X. Xxxxx By: /s/ X.X. Xxxxx
------------------------- -----------------------
X. X. Xxxxx, President X.X. Xxxxx, President
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SECOND AMENDMENT TO
RESTATED AND AMENDED GENERAL AGENCY
COMMISSION AND SERVICING AGREEMENT
THIS SECOND AMENDMENT (this "Second Amendment"), dated as of April 24,
1998, amends and modifies a certain Restated and Amended General Agency
Commission and Servicing Agreement, dated as of June 30, 1997 (as so amended,
the "General Agency Agreement") between: AMERICAN EQUITY INVESTMENT LIFE
INSURANCE COMPANY, an Iowa insurance corporation ("American Equity"), and
AMERICAN EQUITY INVESTMENT SERVICE COMPANY, an Iowa corporation ("AEISC"). Terms
not otherwise expressly defined herein shall have the meanings set forth in the
General Agency Agreement.
FOR VALUE RECEIVED, American Equity and AEISC agree that the General
Agency Agreement is amended as follows:
ARTICLE I - AMENDMENTS TO THE GENERAL AGENCY AGREEMENT
1.1 Definitions. Section 1.1 is amended as follows:
(A) The term "AEISC Amount" shall mean, with respect to any Eligible
Contract, 50% of the Sales Agent Commission payable with respect to
such Eligible Contract.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
Each of the parties hereto warrants and represents to the other that it
is duly authorized to execute and deliver this Amendment and to perform its
respective obligations under the General Agency Agreement as amended hereby, and
that this Amendment constitutes the legal, valid and binding obligation of such
party enforceable in accordance with its terms.
ARTICLE III - CONDITIONS PRECEDENT
This Amendment shall be come effective on the date first set forth
above; provided, however, that the effectiveness of this Amendment is subject to
the satisfaction of each of the following conditions precedent:
3.1 Warranties. After giving effect to this Amendment, the
representations and warranties in Sections 5 and 6 of the General Agency
Agreement shall be true and correct as though made on the date hereof, except
for changes that are permitted by the terms of the General Agency Agreement.
3.2 No Breach. After giving effect to this Amendment, no material
breach by either party shall have occurred and be continuing under the General
Agency Agreement.
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3.3 Execution and Delivery. This Amendment shall have been executed and
delivered by American Equity and AEISC.
ARTICLE IV - GENERAL
4.2 Counterparts. This Amendment may be executed in as many
counterparts as may be deemed necessary or convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original but all such counterparts shall constitute but one and the
same instrument.
4.3 Severability. Any provision of this Amendment which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
4.4 Governing Law. This Amendment shall be a contract made under the
laws of the State of Iowa, which laws shall govern all the rights and duties
hereunder.
4.5 Successors; Enforceability. This Amendment shall be binding upon
the parties and shall inure to the benefit of the parties, their respective
successors and assigns. Except as hereby amended, the General Agency Agreement
shall remain in full force and effect and is hereby ratified and confirmed in
all respects.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed at West Des Moines, Iowa by their respective officers
thereunto duly authorized as of the date first written above.
AMERICAN EQUITY INVESTMENT AMERICAN EQUITY INVESTMENT
LIFE INSURANCE COMPANY SERVICE COMPANY
By: /s/ X.X. Xxxxx By: /s/ X.X. Xxxxx
---------------------- ------------------------
X.X. Xxxxx, President X.X. Xxxxx, President
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THIRD AMENDMENT TO
RESTATED AND AMENDED GENERAL AGENCY
COMMISSION AND SERVICING AGREEMENT
THIS THIRD AMENDMENT (this "Third Amendment"), dated as of October 31,
1998, amends and modifies a certain Restated and Amended General Agency
Commission and Servicing Agreement, dated as of June 30, 1997 (as so amended,
the "General Agency Agreement") between: AMERICAN EQUITY INVESTMENT LIFE
INSURANCE COMPANY, an Iowa insurance corporation ("American Equity"), and
AMERICAN EQUITY INVESTMENT SERVICE COMPANY, an Iowa corporation ("AEISC"). Terms
not otherwise expressly defined herein shall have the meanings set forth in the
General Agency Agreement.
FOR VALUE RECEIVED, American Equity and AEISC agree that the General
Agency Agreement is amended as follows:
ARTICLE I - AMENDMENTS TO THE GENERAL AGENCY AGREEMENT
1.1 Definitions. Section 1.1 is amended as follows:
(A) The term "Eligible Contract" shall mean a Deferred Contract issued
by American Equity and sold by a Sales Agent to a person in a
jurisdiction in which American Equity and AEISC (or its duly-appointed
representative) are duly licensed to issue such contracts or act as an
insurance agency therein, as applicable, and is in a category of
Deferred Contract specified on Schedule 1 attached hereto, and any
Replacement Contract issued with respect of any such contract.
(B) The term "Gross Agent Commission Schedule" shall mean the Gross
Agent Commission Schedule in effect with respect to Eligible Contracts
as of the date hereof as set forth on Schedule 1 hereto.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
Each of the parties hereto warrants and represents to the other that it
is duly authorized to execute and deliver this Amendment and to perform its
respective obligations under the General Agency Agreement as amended hereby, and
that this Amendment constitutes the legal, valid and binding obligation of such
party enforceable in accordance with its terms.
ARTICLE III - CONDITIONS PRECEDENT
This Amendment shall be come effective on the date first set forth
above; provided, however, that the effectiveness of this Amendment is subject to
the satisfaction of each of the following conditions precedent:
3.1 Warranties. After giving effect to this Amendment, the
representations and warranties in Sections 5 and 6 of the General Agency
Agreement shall be true and correct as
-1-
though made on the date hereof, except for changes that are permitted by the
terms of the General Agency Agreement.
3.2 No Breach. After giving effect to this Amendment, no material
breach by either party shall have occurred and be continuing under the General
Agency Agreement.
3.3 Execution and Delivery. This Amendment shall have been executed and
delivered by American Equity and AEISC.
ARTICLE IV - GENERAL
4.2 Counterparts. This Amendment may be executed in as many
counterparts as may be deemed necessary or convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original but all such counterparts shall constitute but one and the
same instrument.
4.3 Severability. Any provision of this Amendment which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
4.4 Governing Law. This Amendment shall be a contract made under the
laws of the State of Iowa, which laws shall govern all the rights and duties
hereunder.
4.5 Successors; Enforceability. This Amendment shall be binding upon
the parties and shall inure to the benefit of the parties, their respective
successors and assigns. Except as hereby amended, the General Agency Agreement
shall remain in full force and effect and is hereby ratified and confirmed in
all respects.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be executed at West Des Moines, Iowa by their respective officers thereunto
duly authorized as of the date first written above.
AMERICAN EQUITY INVESTMENT AMERICAN EQUITY INVESTMENT
LIFE INSURANCE COMPANY SERVICE COMPANY
By: /s/ X.X. Xxxxx By: /s/ X.X. Xxxxx
------------------------- -------------------------
X.X. Xxxxx, President X.X. Xxxxx, President
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Agency Amendment No. 3 -- Commissions Schedule is attached to Paper Copy
------------------------------------------------------------------------
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