EXHIBIT 10.1-B
================================================================================
SECOND RESTATED AND AMENDED
GENERAL AGENCY COMMISSION AND SERVICING
AGREEMENT
DATED AS OF OCTOBER 1, 2002
BETWEEN
AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY
AND
AMERICAN EQUITY INVESTMENT SERVICE COMPANY
================================================================================
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
2
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 ............................. 8
Section 6. 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
3
11.09 Waiver of Jury Trial ........................................... 13
SCHEDULES
1.01(a) - Eligible Contracts
1.01(b) - Gross Agent Commission Schedule
THIS SECOND RESTATED AND AMENDED
GENERAL AGENCY COMMISSION AND SERVICING
AGREEMENT, dated as of October 1, 2002, restates in its entirety and amends that
certain Restated and Amended
General Agency Commission and Servicing Agreement,
dated as of June 30, 1997, as amended (as so restated and 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").
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 issued
prior to July, 1999, 50% of the Sales Agent Commission payable with respect to
such Eligible Contract; and with respect to any Eligible Contract issued after
September 1, 2002, 35% 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
4
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.
"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
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 A 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
5
applied throughout the specified period and in the immediately prior comparable
period.
SECTION 2. SALES AGENT COMMISSIONS.
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.
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 .325% of the Commission Accumulated Value determined as of the preceding
Commission Payment Date. Notwithstanding the preceding sentence, with respect to
the Commission Accumulated 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 Commission Accumulated Value for such Eligible Contracts.
3.02 SUPPLEMENTAL COMMISSIONS.
6
(a) American Equity shall pay to AEISC 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.
(b) 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.
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 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. With respect to Eligible
Contracts sold during 1998, the termination date for payment of Current
Commissions, Supplemental Commissions, or Reimbursement Commissions shall be
December 31, 2004. With respect to Eligible Contracts sold during 1999, the
termination date for payment of Current Commissions, Supplemental Commissions,
or Reimbursement Commissions shall be December 31, 2005. With respect to
Eligible Contracts sold after 1999 for which AEISC paid an AEISC Amount, the
termination date for payment of Current Commissions, Supplemental Commissions,
or Reimbursement Commissions shall be December 31, 2008.
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
7
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.
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.
8
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.
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, 2001 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, 2001. 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.
9
(b) There are no material liabilities, contingent or otherwise, of
American Equity as of December 31,2001 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 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 (2002) 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
10
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 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.
11
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,
2001 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, 2001, 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 other form of compensation for
services to any Person except the President of AEISC; 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.
12
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.
13
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;
(b) within 60 days after the end of each of American Equity's fiscal
14
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 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
15
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 January 31, 2008.
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
16
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
17
