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EXHIBIT 9(a)
AMENDED AND RESTATED
TRANSFER AGENCY and SERVICE AGREEMENT
BETWEEN
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
AND
AMERICAN GENERAL SERIES PORTFOLIO COMPANY 3
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the _ day of 1998, by and between 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 Age .
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') and 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. Expenses.
2.01 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 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
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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 3, Representations and Warranties of the Transfer Agent.
The Transfer Agent represents and warrants to the Fund that:
3.01 It is a stock life insurance company duly organized and existing and in
good standing under the laws of the State of Texas.
3.02 It is duly qualified to carry on its business in the State of Texas.
3.03 It is empowered under applicable laws and by its charter and bylaws to
enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
3.05 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 4. Representations and Warranties of the Fund
4.01 It is duly organized and existing and in good standing under the laws
of the State of Delaware.
4.02 It is empowered under applicable laws and regulations any by its
Agreement and Declaration of Trust and Bylaws to enter into and perform
this Agreement.
4.03 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.04 It is an open-end diversified management investment company registered
under the Investment Company Act of 1940.
4.05 A registration statement under the Securities Act of 1933 is currently
effective and will remain effective, and appropriate state securities
laws filing 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 5. Indemnification.
5.01 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 liability 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 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 representative or warranty of the
Fund hereunder.
5.02 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 liability 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.
5.03 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
coregistrar.
5.04 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.
5.05 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.
5.06 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 6. Covenants of the Fund and the Transfer Agent.
6.01 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.
6.02 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.
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6.03 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 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.
6.04 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.
6.05 In case of any requires 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 7. Term and Termination of Agreement.
7.01 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.
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Article 8. Miscellaneous.
8.01 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.
8.02 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns,
8.03 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.
IN WITNESS WHEREOF, the parties hereto have cause this Agreement to be
executed in their names and on their behalf under their seals by any through
their duly authorized officers, as of the date first above written.
THE VARIABLE ANNUITY LIFE INSURANCE
COMPANY
By:
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Xxxxxx X. Xxxx, Xx.
ATTEST:
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Xxxxxxx X. Xxxxx
AMERICAN GENERAL SERIES PORTFOLIO
COMPANY 3
By:
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Xxxx X. Xxxx
ATTEST:
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Xxxxxxx X. Xxxxx
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