EXHIBIT 8(b)
AMENDED AND RESTATED
TRANSFER AGENCY and SERVICE AGREEMENT
BETWEEN
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
AND
NORTH AMERICAN FUNDS VARIABLE PRODUCT SERIES II
(formerly AMERICAN GENERAL SERIES PORTFOLIO COMPANY 3)
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AMENDED AND RESTATED
TRANSFER AGENCY AND SERVICE AGREEMENT
as of October 17, 2000
AGREEMENT made as of the 17th day of October, 2000, by and between
North American Funds Variable Product Series II (formerly American General
Series Portfolio Company 3), a Delaware business trust, having its principal
office and place of business at Houston, Texas (the "Fund"), and The Variable
Annuity Life Insurance Company, a stock life insurance company organized under
the Texas Insurance Code having its principal office and place of business at
Houston, Texas (the "Transfer Agent").
WHEREAS, the Fund desires to appoint the Transfer Agent as its transfer
agent, dividend disbursing agent and agent in connection with certain other
activities, and the Transfer Agent desires to accept such appointments;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1. Terms of Appointment; Duties of the Transfer Agent.
1.01 Subject to the terms and conditions set forth in this Agreement, the
Fund hereby employs and appoints the Transfer Agent as its transfer
agent, dividend disbursing agent and agent in connection with any
accumulation, open-account or similar plans provided to the
shareholders of the Fund ("Shareholders") as set forth in the currently
effective prospectus of the Fund.
1.02 The Transfer Agent hereby accepts such employment and appointment and
agrees that on and after the effective date of this Agreement it will
act as the Fund's transfer agent, dividend disbursing agent and agent
in connection with the other activities described in paragraph 1.01
hereof, on the terms and conditions set forth herein.
1.03 The Transfer Agent agrees that its duties and obligations hereunder
will be performed in a competent, efficient and xxxxxxx-like manner
with due diligence in accordance with reasonable industry practice, and
that the necessary facilities, equipment and personnel for such
performance will be provided.
Article 2. Compensation.
2.01 The Fund agrees to reimburse the Transfer Agent monthly for the cost of
providing services to the shareholders as described herein.
Article 3. Expenses.
3.01 The Fund agrees to reimburse the Transfer Agent promptly for its
reasonable costs of performing its duties and obligations under this
Agreement, including overhead and out-of-pocket
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expenses or advances paid by the Transfer Agent for postage, envelopes,
checks, drafts, continuous forms, reports and statements, telephone,
telegraph, cost of outside mailing firms, necessary outside record
storage costs, media for storage of records (e.g., microfile,
microfiche, computer tapes) and printing costs incurred due to special
requirements of the Fund. In addition, any other costs or special
out-of-pocket expenses paid by the Transfer Agent at the specific
request of the Fund will be promptly reimbursed by the Fund. Any
postage for mailings of dividends, proxies, Fund reports and other
mailings to all Shareholder accounts shall be advanced to the Transfer
Agent three business days prior to the mailing date of such materials.
Article 4. Representations and Warranties of the Transfer Agent.
The Transfer Agent represents and warrants to the Fund that:
4.01 It is a stock life insurance company duly organized and existing and in
good standing under the laws of the State of Texas.
4.02 It is duly qualified to carry on its business in the State of Texas.
4.03 It is empowered under applicable laws and by its charter and bylaws to
enter into and perform this Agreement.
4.04 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.05 It has and will continue to have during the term of this Agreement
access to the necessary facilities, equipment and personnel to perform
its duties and obligations hereunder.
Article 5. Representations and Warranties of the Fund.
5.01 It is duly organized and existing and in good standing under the laws
of the State of Delaware.
5.02 It is empowered under applicable laws and regulations by its Agreement
and Declaration of Trust and Bylaws to enter into and perform this
Agreement.
5.03 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
5.04 It is an open-end diversified management investment company registered
under the Investment Company Act of 1940.
5.05 A registration statement under the Securities Act of 1933 is currently
effective and will remain effective, and appropriate state securities
laws filings have been made and will continue to be made, with respect
to all shares of the Fund being offered for sale.
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Article 6. Indemnification.
6.01 The Transfer Agent shall not be responsible and the Fund shall
indemnify and hold the Transfer Agent harmless from and against any and
all losses, damages, costs, charges, reasonable counsel fees, payments,
expenses and liabilities arising out of or attributable to:
(a) All actions of the Transfer Agent required to be taken by the
Transfer Agent pursuant to this Agreement, provided the
Transfer Agent has acted in good faith with due diligence and
without negligence or willful misconduct.
(b) The reasonable reliance by the Transfer Agent on, or
reasonable use of the Transfer Agent of, information, records
and documents which have been prepared or maintained by or on
behalf of the Fund or have been furnished to the Transfer
Agent by or on behalf of the Fund.
(c) The reasonable reliance by the Transfer Agent on, or the
carrying out by the Transfer Agent of, any instructions or
requests of the Fund.
(d) The offer or sale of Fund shares in violation of any
requirement under the Federal securities laws or regulations
or the securities laws or regulations of any state or in
violation of any stop order or other determination or ruling
by any Federal agency or any state with respect to the offer
or sale of such shares in such state unless such violation
results from any failure by the Transfer Agent to comply with
written instructions of the Fund that no offers or sales of
Fund shares be made in general or to the residents of a
particular state.
(e) The Fund's refusal or failure to comply with the terms of this
Agreement, or the Fund's lack of good faith, negligence or
willful misconduct or the breach of any representation or
warranty of the Fund hereunder.
6.02 The Transfer Agent shall indemnify and hold the Fund harmless from and
against any and all losses, damages, costs, charges, reasonable counsel
fees, payments, expenses and liabilities arising out of or attributable
to the Transfer Agent's refusal or failure with the terms of this
agreement, or the Transfer Agent's lack of good faith, negligence or
willful misconduct, or the breach of any representation or warranty of
the Transfer Agent hereunder.
6.03 At any time the Transfer Agent may apply to any authorized officer of
the Fund for instructions, and may consult with the Fund's legal
counsel, at the expense of the Fund, with respect to any matter arising
in connection with the services to be performed by the Transfer Agent
under this Agreement, and the Transfer Agent shall not be liable and
shall be indemnified by the Fund for any action taken or omitted by it
in good faith in reasonable reliance upon such instructions or upon the
opinion of such counsel. The Transfer Agent shall be protected and
indemnified in acting upon any paper or document reasonably believed
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by the Transfer Agent to be genuine and to have been signed by the
proper person or persons and shall not be held to have notice of any
change of authority of any person, until receipt of written notice
thereof from the Fund. The Transfer Agent shall also be protected and
indemnified in recognizing stock certificates which the Transfer Agent
reasonably believes to bear the proper manual or facsimile signatures
of the officers of the Fund, and the proper countersignature of any
former transfer agent or registrar, or of a co-transfer agent or
co-registrar.
6.04 In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment
or transmission failure or damage, or other causes reasonably beyond
its control, such party shall not be liable for damages to the other
for any damages resulting from such failure to perform or otherwise
from such causes.
6.05 In no event and under no circumstances shall either party to this
Agreement be liable to the other party for consequential damages under
any provision of this Agreement or for any act or failure to act
hereunder.
6.06 In order that the indemnification provisions contained in this Article
5 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification
shall promptly notify the other party of such assertion, and shall keep
the other party advised with respect to all developments concerning
such claim. The party who may be required to indemnify shall have the
option to participate with the party seeking indemnification in the
defense of such claim. The party seeking indemnification shall in no
case confess any claim or make any compromise in any case in which the
other party may be required to indemnify it except with the other
party's prior written consent.
Article 7. Covenants of the Fund and the Transfer Agent.
7.01 The Fund shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Trustees of
the Fund authorizing the appointment of the Transfer Agent and
the execution and delivery of this Agreement.
(b) A certified copy of the Agreement and Declaration of Trust and
Bylaws of the Fund and all amendments thereto.
7.02 The Transfer Agent hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Fund for safekeeping of
stock certificates, check forms and facsimile signature imprinting
devices, if any; and for the preparation or use and for keeping account
of, such certificates, forms and devices.
7.03 The Transfer Agent shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable;
provided, however, that all accounts, books
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and other records of the Fund (hereinafter referred to as "Fund
Records") prepared or maintained by the Transfer Agent hereunder shall
be maintained and kept current in compliance with Section 31 of the
Investment Company Act of 1940 and the Rules thereunder (such Section
and Rules being hereinafter referred to as the "1940 Act
Requirements"). To the extent required by the 1940 Act Requirements,
the Transfer Agent agrees that all Fund Records prepared or maintained
by the Transfer Agent hereunder are the property of the Fund and shall
be preserved and made available in accordance with the 1940 Act
Requirements, and shall be surrendered promptly to the Fund on its
request. The Transfer Agent agrees at such reasonable times as may be
requested by the Board of Directors of the Fund and at least
semiannually to provide (i) written confirmation to such Board that all
Fund Records are maintained and kept current in accordance with the
1940 Act Requirements, and (ii) such other reports regarding its
performance hereunder as may be reasonably requested by such Board.
7.04 The Transfer Agent and the Fund agree that all books, records,
information and data pertaining to the business of the other party
which are exchanged or received pursuant to the negotiation or the
carrying out of this Agreement shall remain confidential, and shall not
be voluntarily disclosed to any other person, except as may be required
by law.
7.05 In case of any inquiries or demands for the inspection of the
Shareholder records of the Fund, the Transfer Agent will endeavor to
notify the Fund and to secure instructions from an authorized officer
of the Fund as to such inspection. The Transfer Agent reserves the
right, however, to exhibit the Shareholder records to any person
whenever it is advised by its counsel that it may be held liable for
the failure to exhibit the Shareholder records to such person.
Article 8. Term and Termination of Agreement.
8.01 This Agreement shall remain in effect until terminated as hereinafter
provided. This Agreement may be terminated by the Fund at any time by
giving written notice to the Transfer Agent at least 120 days prior to
the date on which such termination is to be effective; and provided,
further, that this Agreement may be terminated by the Transfer Agent
for good and reasonable cause at any time by giving written notice to
the Fund at least 120 days prior to the date on which such termination
is to be effective. Any reimbursable expenses payable to the Transfer
Agent shall be due on any such termination date. The Transfer Agent
agrees to use its best efforts to cooperate with the Fund and the
successor transfer agent in accomplishing an orderly transition.
Article 9. Miscellaneous.
9.01 Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the other;
provided, however, that no consent shall be required for any merger of
the Fund with, or any sale of all or substantially all the assets of
the Fund to, another investment company.
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9.02 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
9.03 This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, and supersedes any
prior agreement with respect thereto, whether oral or written and this
Agreement may not be modified except by written instrument executed by
both parties.
9.04 The execution of this Agreement has been authorized by the Fund's
Trustees and by the sole shareholder. This Agreement is executed on
behalf of the Fund or the Trustees of the Fund as Trustees and not
individually and that the obligations of this Agreement are not binding
upon any of the Trustees, officers or shareholders of the Fund
individually, but are binding only upon the assets and property of the
Fund. A Certificate of Trust in respect of the Fund is on file with the
Secretary of the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the date first above written.
THE VARIABLE ANNUITY LIFE
INSURANCE COMPANY
By:
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Xxxx Xxxxxxxxx
Senior Vice President, General Counsel
and Secretary
ATTEST:
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NORTH AMERICAN FUNDS
VARIABLE PRODUCT SERIES II
By:
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Xxxx X. Xxxxxx
Vice President and Secretary
ATTEST:
--------------------------------
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