FIRST AMENDMENT TO FUND PARTICIPATION AGREEMENT
THIS AMENDMENT TO FUND PARTICIPATION AGREEMENT is made as of this 20th
day of April 2000, by and among, GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
("GWL&A"), AMERICAN CENTURY INVESTMENT MANAGEMENT, INC. (the "Adviser") and
FUNDS DISTRIBUTOR, INC. (the "Distributor"). Capitalized terms not otherwise
defined herein shall have the meaning ascribed to them in the Original Agreement
(defined below).
RECITALS
WHEREAS, GWL&A, the Adviser and the Distributor are parties to a certain
Participation Agreement, dated September 14th, 1999, (the "Original Agreement"),
pursuant to which shares of Portfolios of the Fund, an open-end management
investment company registered under the Investment Company Act of 1940, are made
available to act as an investment vehicle for separate accounts established for
variable life insurance policies and/or variable annuity contracts to be offered
by insurance companies, including GWL&A, and
WHEREAS, GWL&A entered into the Original Agreement on its own behalf and on
behalf of its Account, the COLI VUL Series Account 2, and
WHEREAS, GWL&A, the Adviser and the Distributor desire to add the FutureFunds
Series Account of GWL&A ("FutureFunds") to the Accounts covered under the
Original Agreement; and
WHEREAS, FutureFunds is a duly organized, validly existing segregated asset
account, established by resolution of the Board of Directors of GWL&A, to set
aside and invest assets attributable to variable annuity contracts; and
WHEREAS, GWL&A has registered FutureFunds as a unit investment trust under the
Investment Company Act of 1940 and has registered the securities deemed to be
issued by FutureFunds and the variable annuity contracts supported wholly or
partially by FutureFunds under the 1933 Act; and
WHEREAS, GWL&A desires to utilize shares of the Designated Portfolios on behalf
of the Accounts to fund the variable annuity contracts sold through FutureFunds
as well as the variable life insurance contracts sold through COLI VUL Series
Account 2, either directly or indirectly through the Profile Portfolios of the
Maxim Series Fund, Inc.; and
WHEREAS, as of March 13, 2000, American Century Services, Inc. ("ACIS") became
the new distributor of the Fund and in connection therewith, the Distributor
hereby wishes to assign to ACIS and ACIS wishes to accept, all Distributor's
rights and obligations under the Original Agreement, and
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
parties agree as follows, effective as of the date first written above:
1. Distributor hereby assigns all of its rights and obligations under the
Original Agreement to ACIS and ACIS wishes to accept such assignment.
GWL&A hereby consents to such assignment. After the date of this
amendment, all references to "Distributor" in the Original Agreement
shall be deemed to refer to ACIS.
2. FutureFunds is added as an Account of GWL&A under the Original
Agreement.
3. The first sentence of Section 1.1 of the Original Agreement is deleted
in its entirety and replaced with the following:
"The Distributor agrees to sell to GWL&A those shares of the
Designated Portfolio(s) which the Account orders, either directly
or indirectly through the Profile Portfolios of the Maxim Series
Fund, Inc., executing such orders on each Business Day at the net
asset value next computed after receipt by the Distributor or its
designee of the order for the shares of the Portfolios."
4. The first sentence of Section 1.2 of the Original Agreement is deleted
in its entirety and replaced with the following:
"The Fund and the Distributor agree to make shares of the
Designated Portfolio(s) available for purchase by GWL&A and the
Accounts, either directly or indirectly through the Profile
Portfolios of the Maxim Series Fund, Inc., at the applicable net
asset value per share on each Business Day."
5. Section 1.7 of the Original Agreement is deleted in its entirety and
replaced with the following:
"Issuance and transfer of the Fund's shares will be by book entry
only. Shares ordered from the Fund will be recorded in an
appropriate title for the Accounts, the appropriate sub-account
of the Accounts or the Maxim Series Fund, Inc."
6. The first sentence of Section 2.10 of the Original Agreement is
deleted in its entirety and replaced with the following:
"GWL&A represents and warrants, for purposes other than
diversification under Section 817 of the Internal Revenue Code of
1986, as amended ("the Code"), that the FutureFunds Contract is
currently treated as an annuity contract and the CV-2 Contract is
currently treated as a life insurance contract under applicable
provisions of the Code, and that it will make every effort to
maintain such treatment and that it will notify the Adviser
immediately upon having a reasonable basis for believing that the
Contracts have ceased to be so treated or that they might not be
so treated in the future."
7. Section 5.1 of the Original Agreement is deleted in its entirety and
replaced with the following:
"The Fund and the Adviser and the Distributor shall pay no fee or
other compensation to GWL&A under this Agreement, other than as
described in Schedule C hereto, and GWL&A shall pay no fee or
other compensation to the Fund, the Adviser or the Distributor
under this Agreement, although the parties hereto will bear
certain expenses in accordance with Schedule E, Articles III, V,
and other provisions of this Agreement.
8. The first sentence of Section 5.6 of the Original Agreement is hereby
deleted and replaced in its entirety with the following:
"As compensation for the services specified in the Schedule C
hereto, the Adviser agrees to pay GWL&A a monthly Administrative
Service Fee based on the percentage per annum on Schedule C
hereto applied to the average daily value of the shares of the
Designated Portfolio(s) held in the Accounts, either directly or
indirectly, with respect to Contracts sold by GWL&A."
9. Schedule A of the Original Agreement is hereby deleted and replaced in
its entirety with the Schedule A attached hereto and incorporated by
reference herein.
10. Schedule B of the Original Agreement is hereby deleted and replaced in
its entirety with the Schedule B attached hereto and incorporated by
reference herein.
11. Article B of Schedule C of the Original Agreement is hereby deleted
and replaced in its entirety with the following:
"B. For the services, GWL&A shall receive a fee of 0.30% per
annum applied to the average daily value of the shares of the
Fund held by the Accounts, either directly or indirectly through
the Profile Portfolios of the Maxim Series Fund, Inc., in order
to fund Contracts purchased by GWL&A's customers, payable by the
Adviser directly to GWL&A, such payments being due and payable
within 30 (thirty) days after the last day of the quarter to
which such payment relates."
IN WITNESS WHEREOF, the undersigned duly authorized officers have executed this
Amendment in their capacities as such as of the date first written above.
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By: /s/ Xx Xxxxxxxxxx
Name: Xx Xxxxxxxxxx
Title: Assistant Vice President
AMERICAN CENTURY INVESTMENT MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxx
Title: Executive Vice President
FUNDS DISTRIBUTOR, INC.
By: /s/ Xxxxxxx X.
Name: Xxxxxxx X.
Title: Vice President, Director of Compliance, Counsel
(000)000-0000
SCHEDULE A
Contracts Form Numbers Account
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Individual Flexible Premium
Variable Universal Life J355 COLIVUL - 2
Group Tax Deferred Annuity GTDAMF92 Vol FutureFunds
Group Tax Deferred Annuity GTDAMF92 ER FutureFunds
SCHEDULE B
Designated Portfolios (offered either directly or indirectly to the Accounts)
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American Century VP Capital Appreciation
American Century VP Balanced
American Century VP Advantage
American Century VP International
American Century VP Value
American Century VP Income & Growth
