Exhibit 10.1-D
FIRST AMENDMENT TO
SECOND RESTATED AND
AMENDED
GENERAL AGENCY COMMISSION AND
SERVICING AGREEMENT
This FIRST AMENDMENT dated as
of December 29, 2004, amends certain provisions of that certain
SECOND RESTATED AND AMENDED GENERAL AGENCY COMMISSION AND
SERVICING AGREEMENT, dated as of October 1, 2002 (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”).
WHEREAS, the American Equity and AEISC have agreed to
amend certain terms and conditions of the General Agency Agreement
in connection with American Equity’s 2004 annuity
business;
NOW, THEREFORE,
For good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, each
of the parties hereto agrees as follows:
Section 1.
Amendments
1.01 Amendments to
Definitions. The
following amendments are hereby made to Section 1.01 of the General
Agency Agreement:
a.
The definition of “AEISC
Amount” shall be deleted in its entirety and the following
shall be inserted in lieu thereof:
“ AEISC Amount ”
shall mean:
(i) with respect to any Eligible
Contract issued prior to July, 1999, 50% of the Sales Agent
Commission payable with respect to such Eligible
Contract;
(ii) with respect to any Eligible
Contract issued in October, November and December of 2002, 35% of
the Sales Agent Commission payable with respect to such Eligible
Contract; and
(iii) with respect to any Eligible
Contract issued during calendar year 2004, 13.5% of the Sales Agent
Commission payable with respect to such Eligible
Contract.
b.
The definition of “Commission
Accumulated Value” shall be deleted in its entirety and the
following shall be inserted in lieu thereof:
“ Commission Accumulated
Value ” shall mean, with respect to any identified group
of Eligible Contracts as at any Commission Payment Date, an amount
equal to the aggregate of the Accumulated Values of all of the
Eligible Contracts in such group that are in force on such
Commission Payment Date.
c.
The definition of “Eligible
Contract” shall be deleted in its entirety and the following
shall be inserted in lieu thereof;
“ Eligible Contract
” shall mean a deterred annuity 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 any Replacement
Contract issued in respect of any such contract; provided however,
that for deferred annuity contracts issued by American Equity in
2004, any such contract which docs not meet one or more of the
following additional criteria shall be excluded from this
definition: (i) any contract issued to a person who is age 80 or
older on the date the contract is issued; (ii) any contract which
does not provide for a surrender Charge for at least the first
seven years of the contract term; (iii) any contract for which the
surrender charge percentage is not at least 5% of the accumulated
policy value of the contract during the first six years of the
contract term; and (iii) any Contract which does not have a minimum
guaranteed crediting rate of at least 2.25%.
d.
The following new definitions shall
be added to the General Agency Commissions Agreement:
“ 2004 Current Commission
Rate ” shall mean the product of 7.7823% multiplied by
the Applicable Rate.
“ 2004 Eligible
Contract ” shall mean any Eligible Contract issued
between January 1, 2004 and December 31, 2004 (including both
January 1, 2004 and December 31, 2004) and any Replacement Contract
issued in respect of any such contract.
“ Applicable Rate
” shall mean the quotient of (i) $20,000,000 divided by (ii)
the Commission Accumulated Value on December 31, 2004 of all 2004
Eligible Contracts, excluding (A) any Voided Eligible Contracts (as
defined in Section 3.03 hereof) which are voided during the 30-day
period following December 31, 2004 and (B) any Replacement
Contracts for which AEISC has no obligation to pay an AEISC Amount
by reason of Section 2.03 hereof.
“ Event of Default
” shall mean (a) the failure of American Equity to pay any
Current Commissions, Supplemental Commissions or Reimbursement
Commissions when due; or (b) the failure of American Equity to
perform any of its obligations under Section 8 hereof.
“ Servicer ”
shall mean American Equity.
“ Supplemental Contract
Commission Rate ” shall mean, with respect to
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