AMENDMENT TO FUND PARTICIPATION AGREEMENT
THIS AMENDMENT TO PARTICIPATION AGREEMENT is made as of this 1st day of
April, 2002, by and among, Great-West Life & Annuity Insurance Company
("GWL&A"), INVESCO Variable Investment Funds, Inc. (the "Fund"), INVESCO Funds
Group, Inc. (the "Adviser"), and INVESCO Distributors, Inc. (the "Distributor").
Capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the Agreement (defined below).
RECITALS
WHEREAS, GWL&A, the Fund, the Adviser and the Distributor are parties to a
certain Participation Agreement, dated June 18th, 1999, as amended from time to
time (the"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 Agreement on its own behalf and on behalf of its
Accounts; FutureFunds Series Account and COLI VUL -2 Series Account ("CV-2"),
and
WHEREAS, GWL&A, the Fund, the Adviser, and the Distributor desire to add COLI
VUL - 7 Series Account ("CV-7") to the Accounts covered under the Agreement; and
WHEREAS, CV-7 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 life insurance contracts; and
WHEREAS, CV-7 is exempt from registration as a unit investment trust under the
Investment Company Act of 1940 and the issuance of such securities is exempt
from registration under the Securities Act of 1933; and
WHEREAS, GWL&A desires to utilize shares of the Designated Portfolios on behalf
of the Accounts to fund the variable life insurance contracts through CV-2 and
CV-7 as well as the group annuity contracts sold through FutureFunds; and
WHEREAS, GWL&A, the Fund, the Adviser, and the Distributor desire to amend the
Agreement in order to allow additional affiliated Portfolios of the Fund to be
available to the Accounts; 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. CV-7 is added as an Account of GWL&A under the Agreement.
2. Section 2.1 of the Agreement is deleted in its entirety and replaced with
the following:
"GWL&A represents and warrants that, except with respect to CV-7, the
Contracts and the securities deemed to be issued by the Accounts under the
Contracts are or will be registered under the 1933 Act; that the Contracts
will be issued and sold in compliance in all material respects with all
applicable federal and state laws and that the sale of the Contracts shall
comply in all material respects with state insurance suitability
requirements. GWL&A further represents and warrants that it is an insurance
company duly organized and in good standing under applicable law and that
it has legally and validly established the Accounts prior to any issuance
or sale of units thereof as a segregated asset account under Colorado
insurance law and, except with respect to CV-7, has registered the Accounts
as unit investment trusts in accordance with the provisions of the 1940 Act
to serve as segregated investment accounts for the Contracts and that it
will maintain such registration for so long as any Contracts are
outstanding as required by applicable law."
3. The first sentence of Section 2.9 of the 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 Series Account Contracts are currently treated
as annuity contracts and the CV-2 and CV-7 Contracts are currently treated
as life insurance contracts under applicable provisions of the Code, and
that it will make every effort to maintain such treatment and that it will
notify the Fund and 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."
4. Section 3.8 is added to the Agreement as follows:
"Notwithstanding Section 3.5 hereof, for CV-7 that is exempt from
registration under the 1940 Act in reliance upon Section 3(c)(l) or Section
3(c)(7) thereof, GWL&A represents and agrees that:
(i) BenefitsCorp Equities, Inc. is the principal underwriter for such
unregistered Account and its Subaccounts and is a registered
broker- dealer under the 1934 Act;
(ii) the shares of the Fund are and will continue to be the only
investment securities held by the corresponding Subaccounts of
that Account; and
(iii) with regard to each Designated Portfolio, GWL&A, on behalf of
the corresponding Subaccount, will:
(a) vote such shares held by it in the same proportion as
the vote of all other holders of such shares; and
(b) refrain from substituting shares of another security
for such shares unless the SEC has approved such
substitution in the manner provided in Section 26 of
the 1940 Act."
5. For purposes of Article VIII of the Agreement, the parties understand and
agree that the references to the "registration statement, prospectus, SAI
or sales literature or other promotional material for the Contracts" are
deemed to include private placement memorandums issued in connection with
CV-7.
6. Schedule A of the Agreement, and as applicable throughout such Agreement,
is hereby deleted and replaced in its entirety with the Schedule A attached
hereto.
7. All other terms and provisions of the Agreement shall remain in full effect
to the extent not superseded hereby.
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/ Xxx Loeyendecker
--------------------
Name: Xxx Loeyendecker
Title: Vice President
INVESCO VARIABLE INVESTMENT FUNDS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Grcoms
Title: Treasurer
INVESCO FUNDS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
INVESCO DISTRIBUTORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
SCHEDULE A
Accounts
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FutureFunds Series Account (all Form Nos. relating thereto)
COLI VUL - 2 Series Account (Form No. J355)
COLI VUL - 7 Series Account (Form No. 5350)
