EXHIBIT-99(yy)
AMENDMENT TO
PARTICIPATION AGREEMENT
The Participation Agreement (the "Agreement"), dated as of April 1, 2001, by and
among AIM Variable Insurance Funds, AIM Distributors, Inc.; Annuity Investors
Life Insurance Company, and Great American Advisors, Inc., is hereby amended as
follows:
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-1 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 AVIF
or its designated agent of the orders. For purposes of this Section
2.3(a), LIFE COMPANY shall be the designated agent of AVIF for receipt of
orders relating to Contract transactions, in accordance with Section
22(c) and Rule 22c-1 under the 1940 Act, on each Business Day and receipt
by such designated agent shall constitute receipt by AVIF; provided that
AVIF 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 2.1(b) hereof. In connection with this Section 2.3(a), LIFE
COMPANY represents and warrants that it will not submit any order for
Shares or engage in any practice, nor will it allow or suffer any person
acting on its behalf to submit any order for Shares or engage in any
practice, 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 AVIF 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 and UNDERWRITER agree 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")) from engaging in any trading practices in
any Fund that the Board or AIM determines,
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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 6.4 of the Agreement is hereby deleted in its entirety and replaced with
the following:
6.4 FUNDS TO REMAIN AVAILABLE
Notwithstanding any termination of this Agreement by LIFE COMPANY,
AVIF 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 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 and/or redemption order
as described in Section 2.3(c) hereof.
SECTION 22 is hereby added to the Agreement:
SECTION 22. FORCE MAJEURE
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.
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SCHEDULE A of the Agreement is hereby deleted in its entirety and replaced with
the following:
SCHEDULE A
FUNDS AVAILABLE UNDER THE CONTRACTS
AIM V.I. Aggressive Growth Fund INVESCO VIF - Core Equity Fund (name
AIM V.I. Balanced Fund will be changed to AIM V.I. Core Stock
AIM V.I. Basic Value Fund Fund on October 15,2004)
AIM V.I. Blue Chip Fund INVESCO VIF - Dynamics Fund (name will
AIM V.I. Capital Appreciation Fund be changed to AIM V.I. Dynamics Fund on
AIM V.I. Capital Development Fund October 15, 2004)
AIM V.I. Core Equity Fund INVESCO VIF - Financial Services Fund
AIM V.I. Dent Demographic Trends Fund (name will be changed to AIM V.I.
AIM V.I. Diversified Income Fund Financial Services Fund on October 15, 2004)
AIM V.I. Government Securities Fund INVESCO VIF - Health Sciences Fund
AIM V.I. Growth Fund (name will be changed to AIM V.I. Health
AIM V.I. High Yield Fund Sciences Fund on October 15, 2004)
AIM V.I. International Growth Fund INVESCO VIF - Leisure Fund (name will be
AIM V.I. Large Cap Growth Fund changed to AIM V.I. Leisure Fund on October
AIM V. . Mid Cap Core Equity Fund 15, 2004)
AIM V. . Money Market Fund INVESCO VIF - Small Company Growth
AIM V. . Premier Equity Fund Fund (name will be changed to AIM V.I.
AIM V. . Real Estate Fund Small Company Growth Fund on October 15,
AIM V. . Small Cap Equity Fund 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)
SEPARATE ACCOUNTS UTILIZING THE FUNDS
- Annuity Investors Variable Account A
- Annuity Investors Variable Account B
- Annuity Investors Variable Account C
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CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
- The Commodore Nauticus Group Flexible Premium Deferred Variable Annuity
- The Commodore Americus Individual Flexible Premium Deferred Variable
Annuity
- The Commodore Spirit Individual and Group Flexible Premium Deferred
Annuity (f/k/a The Commodore Navigator Flexible Premium Deferred Variable
Annuity)
- The Commodore Advantage Individual and Group Flexible Premium Deferred
Annuity
- The Commodore Independence Individual and Group Flexible Premium Deferred
Annuity
- The Commodore Helmsman Individual Flexible Premium Deferred Variable
Annuity
- The Commodore Majesty Individual Flexible Premium Deferred Variable
Annuity
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All other terms and provisions of the Agreement not amended herein shall remain
in full force and effect.
Effective date: April 30, 2004
AIM VARIABLE INSURANCE FUNDS
Attest: /s/ Xxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------- -------------------------
Name: Xxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary Title: President
AIM DISTRIBUTORS, INC.
Attest: /s/ Xxx X. Xxxxxxxx By: /s/ Xxxx X. Needles
---------------------- --------------------------
Name: Xxx X. Xxxxxxxx Name: Xxxx X. Needles
Title: Assistant Secretary Title: President
ANNUITY INVESTORS LIFE
INSURANCE COMPANY
Attest: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------- ----------------------------
Name: Xxxxxxx Xxxx Name: Xxxxxx X. Xxxxxxxxxx
Title: Admin. Asst. Title: President
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GREAT AMERICAN ADVISORS, INC.
Attest: /s/ Xxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxxxxx
-------------------- ----------------------------
Name: Xxxxxx Xxxxx Name: Xxxxx X. Xxxxxxxxx
Title: Admin. Asst. Title: President
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