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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any Supplemental Contract issued in exchange for an
Eligible Contract, (i) the Accumulated Value of such Eligible Contract at the
time of such exchange, divided by (ii) the monthly benefit payable under such
Supplemental Contract, multiplied by (iii) 7.7823%, multiplied by (iv) the
Applicable Rate.


 


“Supplemental Contract”
shall mean any contract issued by American Equity in exchange for an Eligible
Contract, which Supplemental Contract provides for a series of periodic
payments to the contract holder over a specified period.


 


c.                                       The
definition of “Account Surrender Value” shall be deleted in its entirety.


 


1.02 Amendment to General Agency Current Commissions. Section 3.01 of the General Agency
Agreement is hereby deleted in its entirety and the following is inserted in
lieu thereof:


 


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 the following amounts:


 


(i) 0.325% multiplied by
the Commission Accumulated Value determined as of such Commission Payment Date
for Eligible Contracts produced during 1998, the first six months of 1999, and
the last three months of 2002;


 


(ii) the 2004 Current
Commission Rate multiplied by the Commission Accumulated Value determined as of
such Commission Payment Date for all 2004 elligible contracts; and


 


(iii) for each
Supplemental Contract that is in force on such Commission Payment Date, an
amount equal to the product of (A) the monthly benefit payable under such
Supplemental Contract multiplied by (B) the Supplemental Contract Commission
Rate associated with such Supplemental Contract.”


 


1.03 Amendment to General Agency Reimbursement Commissions. The following sentence shall be added to
Section 3.03:


 


“Notwithstanding anything herein to the contrary, no
Reimbursement Commissions shall be paid with respect to any 2004 Eligible
Contract.”


 


1.04        Amendment
to Termination of Commission Obligations. Section 3.04 shall be deleted in its
entirety and the following shall be inserted in lieu thereof:


 


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3.04 Termination of Commission Obligations.   The
termination dates for payment of Current Commissions, Supplemental Commissions,
or Reimbursement Commissions shall be as follows with respect to Eligible
Contracts produced in the specified periods;


 


(i)            For Eligible Contracts produced
during 1998, the termination date is December 31, 2004;


 


(ii)           For Eligible Contracts produced
during the first six months of 1999, the termination date is December 31, 2005;


 


(iii)          For Eligible Contracts produced during
the last three months of 2002, the termination date is December 31, 2008;


 


(iv)          For Eligible Contracts produced during
2004, the termination date is December 31, 2009.


 


1.05  Amendment
of Termination Section. Section
10 shall be deleted in its entirety and the following shall be inserted in lieu
thereof:


 


Section
10. Termination. Subject
to the provisions of Section 3.05 hereof, the obligations of AEISC and American
Equity under this Agreement shall terminate on January 31, 2010.


 


Section 2.  Representations. American Equity and AEISC
each warrant and represent to the other that it is duly authorized to execute
and deliver this First Amendment and to perform its obligations under the
General Agency Agreement as amended hereby, and that this First Amendment
constitutes the legal, valid and binding obligation of each such party,
respectively, enforceable in accordance with its terms.


 


Section 3.  Conditions Precedent. This First Amendment
shall be come effective on the date first set forth above, provided, however,
that the effectiveness of this First Amendment is subject to the satisfaction
of each of the following conditions precedent:


 


3.01 Warranties
of American Equity. After
giving effect to this First Amendment, the representations and warranties by
American Equity in Section 5 of the General Agency Agreement shall be true and
correct as though made on the date hereof, except for changes that are
permitted by the terms of the General Agency Agreement, and except that all
references to December 31, 2001 shall be deemed to be references to December
31, 2003. The execution by American Equity of this First Amendment shall he deemed
a representation that American Equity has complied with the foregoing
condition.


 


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3.02 Warranties of AElSC. After giving
effect to this First Amendment, the representations and warranties by AEISC in
Section 6 of the General Agency Agreement shall be true and correct as though
made on the date hereof, except for changes that are permitted by the terms of
the General Agency Agreement, and except that all references to December 31,
2001 shall be deemed to be references to December 31, 2003.  The execution by AEISC of this First
Amendment shall be deemed a representation that AEISC has complied with the
foregoing condition.


 


3.03 No
Defaults. After
giving effect to this First Amendment, no Event of Default shall have occurred
and be continuing under the General Agency Agreement. The execution by each of
American Equity and AEISC, respectively, shall be deemed a representation that
each has complied with the foregoing condition.


 


3.05 Execution
and Delivery. This
First Amendment shall have been executed and delivered by American Equity and
AEISC.


 


Section 4. General.


 


4.01 Counterparts. This First Amendment may be executed in
as many counterparts as may be deemed necessary or convenient, and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed on original but all such counterparts shall
constitute but one and the same instrument.


 


4.02 Severability. Any provision of this First Amendment
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining portions hereof or
affecting the validity or enforceability of such provisions in any other
jurisdiction.


 


4.03 Governing
Law. This
First Amendment shall be a contract made under the laws of the State of Iowa,
which laws shall govern all the rights and duties hereunder.


 


4.04 Successors;
Enforceability. This
First Amendment shall be binding upon American Equity and AEISC and their
respective successors and assigns, and shall inure to the benefit of American
Equity and AEISC and their respective successors and assigns. Except as hereby
amended, the General Agency Agreement shall remain in full force and effect and
is hereby ratified and confirmed in all respects.


 


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IN
WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed at West Des Moines, IA by their respective officers
thereunto duly authorized as of the date first written above.


 


 


	
  AMERICAN EQUITY
  INVESTMENT

  LIFE INSURANCE COMPANY

  	
  AMERICAN EQUITY INVESTMENT

  SERVICE COMPANY

  
	
   

  
	
   

  
	
  By: /s/ Kevin R. Wingert

  	
   

  	
  By: /s/ David J. Noble

  	
   

  	
   

  
	
  Kevin R. Wingert, President

  	
   

  	
  David J. Noble, President

  	
   

  	
   

  



 


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