EXHIBIT (3)(a)(3)
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FORM OF AMENDED AND RESTATED PRINCIPAL UNDERWRITING AGREEMENT
AMENDED AND REINSTATED
PRINCIPAL UNDERWRITING AGREEMENT
THIS AMENDED AND REINSTATED PRINCIPAL UNDERWRITING AGREEMENT made and
effective as of the 1st day of May, 2002, by and between AFSG SECURITIES
CORPORATION ("AFSG"), a Pennsylvania corporation, and TRANSAMERICA LIFE
INSURANCE COMPANY ("Transamerica"), an Iowa corporation, on its own behalf and
on behalf the separate investment accounts of Transamerica set forth in Exhibit
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A attached hereto and made a part hereof (collectively, the "Account").
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WITNESSETH:
WHEREAS, the Account was established or acquired by TRANSAMERICA under the
laws of the State of Iowa, pursuant to a resolution of Transamerica's Board of
Directors in order to set aside the investment assets attributable to certain
flexible premium, multi-funded annuity contracts ("Contracts") issued by
Transamerica;
WHEREAS, Transamerica has registered or will register the Account with the
Securities and Exchange Commission ("SEC") as a unit investment trust under the
Investment Company Act of 1940 (the "1940 Act");
WHEREAS, Transamerica has registered or will register the Contracts under
the Securities Act of 1933 (the "1933 Act");
WHEREAS, AFSG is and will continue to be registered as a broker-dealer with
the SEC under the Securities Exchange Act of 1934 (the "1934 Act"), and a member
of
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the National Association of Securities Dealers, Inc. (the "NASD") prior to the
offer and sale of the Contracts; and
WHEREAS, Transamerica proposes to have the Contracts sold and distributed
through AFSG, and AFSG is willing to sell and distribute such Contracts under
the terms stated herein;
NOW, THEREFORE, the parties, intending to be legally bound, hereby agree as
follows:
1. Appointment as Distributor/Principal Underwriter. Transamerica grants
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to AFSG the exclusive right to be, and AFSG agrees to serve as, distributor and
principal underwriter of the Contracts during the term of this Agreement. AFSG
agrees to use its best efforts to solicit applications for the Contracts and
otherwise perform all duties and functions which are necessary and proper for
the distribution of the Contracts.
2. Prospectus. AFSG agrees to offer the Contracts for sale in accordance
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with the registration statements and prospectus therefor then in effect. AFSG
is not authorized to give any information or to make any representations
concerning the Contracts other than those contained in the current prospectus
therefor filed with the SEC or in such sales literature as may be authorized by
Transamerica.
3. Considerations. All premiums, purchase payments or other moneys
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payable under the Contracts shall be remitted promptly in full together with
such application, forms and any other required documentation to Transamerica or
its designated servicing agent and shall become the exclusive property of
Transamerica. Checks or money orders in payment under the Contracts shall be
drawn to the order of
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"Transamerica Life Insurance Company" and funds may be remitted by wire if prior
written approval is obtained from Transamerica.
4. Copies of Information. On behalf of the Account, Transamerica shall
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furnish AFSG with copies of all prospectuses, financial statements and other
documents which AFSG reasonably requests for use in connection with the
distribution of the Contracts.
5. Representations. AFSG represents that it is (a) duly registered as a
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broker-dealer under the 1934 Act, (b) a member in good standing of the NASD and
(c) to the extent necessary to offer the Contracts, duly registered or otherwise
qualified under the securities laws of any state or other jurisdiction. AFSG
shall be responsible for carrying out its sales and underwriting obligations
hereunder in continued compliance with the NASD Rules and federal and state
securities and insurance laws and regulations. Further, AFSG represents and
warrants that it will adopt, abide by and enforce the principles set forth in
the Principles and Code of Ethical Market Conduct of the Insurance Marketplace
Standards Association as adopted by the Company.
6. Other Broker-Dealer Agreements. AFSG is hereby authorized to enter
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into written sales agreements with other independent broker-dealers for the sale
of the Contracts. All such sales agreements entered into by AFSG shall provide
that each independent broker-dealer will assume full responsibility for
continued compliance by itself and by its associated persons with the NASD Rules
and applicable federal and state securities and insurance laws, shall provide
that each independent broker-dealer will adopt, abide by and enforce the
principles set forth in the Principles and Code of Ethical Market Conduct of the
Insurance Marketplace Standards Association as
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adopted by the Company, and shall be in such form and contain such other
provisions as Transamerica may from time to time require. All associated persons
of such independent broker-dealers soliciting applications for the Contracts
shall be duly and appropriately registered by the NASD and licensed and
appointed by Transamerica for the sale of Contracts under the insurance laws of
the applicable states or jurisdictions in which such Contracts may be lawfully
sold. All applications for Contracts solicited by such broker-dealers through
their representatives, together with any other required documentation and
premiums, purchase payments and other moneys, shall be handled as set forth in
paragraph 3 above.
7. Insurance Licensing and Appointments. Transamerica shall apply for the
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proper insurance licenses and appointments in appropriate states or
jurisdictions for the designated persons associated with AFSG or with other
independent broker-dealers that have entered into sales agreements with AFSG for
the sale of Contracts, provided that Transamerica reserves the right to refuse
to appoint any proposed registered representative as an agent or broker, and to
terminate an agent or broker once appointed.
8. Recordkeeping. Transamerica and AFSG shall cause to be maintained and
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preserved for the periods prescribed such accounts, books, and other documents
as are required of them by the 1940 Act, and 1934 Act, and any other applicable
laws and regulations. The books, accounts and records of Transamerica, of the
Account, and of AFSG as to all transactions hereunder shall be maintained so as
to disclose clearly and accurately the nature and details of the transactions.
Transamerica (or such other entity engaged by Transamerica for this purpose), on
behalf of and as agent for
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AFSG, shall maintain AFSG's books and records pertaining to the sale of
Contracts to the extent as mutually agreed upon from time to time by
Transamerica and AFSG; provided that such books and records shall be the
property of AFSG, and shall at all times be subject to such reasonable periodic,
special or other audit or examination by the SEC, NASD, any state insurance
commissioner and/or all other regulatory bodies having jurisdiction.
Transamerica shall be responsible for sending on behalf of and as agent for AFSG
all required confirmations on customer transactions in compliance with
applicable regulations, as modified by an exemption or other relief obtained by
Transamerica. AFSG shall cause Transamerica to be furnished with such reports as
Transamerica may reasonably request for the purpose of meeting its reporting and
recordkeeping requirements under the insurance laws of the State of Iowa and any
other applicable states or jurisdictions. Transamerica agrees that its records
relating to the sale of Contracts shall be subject to such reasonable periodic,
special or other audit or examination by the SEC, NASD, and any state insurance
commissioner and/or all other regulatory bodies having jurisdiction.
9. Commissions. Transamerica shall have the responsibility for paying on
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behalf of AFSG (a) any compensation to other independent broker-dealers and
their associated persons due under the terms of any sales agreements entered
into pursuant to paragraph 6 above, between AFSG and such broker-dealers as
agreed to by Transamerica and (b) all commissions or other fees to associated
persons of AFSG which are due for the sale of the Contracts in the amounts and
on such terms and conditions as Transamerica and AFSG determine.
Notwithstanding the preceding
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sentence, no broker-dealer, associated person or other individual or entity
shall have an interest in any deductions or other fees payable to AFSG as set
forth herein.
10. Expense Reimbursement. Transamerica shall reimburse AFSG for all
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costs and expenses incurred by AFSG in furnishing the services, materials, and
supplies required by the terms of this Agreement.
11. Indemnification. Transamerica agrees to indemnify AFSG for any losses
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incurred as a result of any action taken or omitted by AFSG, or any of its
officers, agents or employees, in performing their responsibilities under this
Agreement in good faith and without willful misfeasance, gross negligence, or
reckless disregard of such obligations.
12. Regulatory Investigations. AFSG and Transamerica agree to cooperate
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fully in any insurance or judicial regulatory investigation or proceeding
arising in connection with Contracts distributed under this Agreement. AFSG and
Transamerica further agree to cooperate fully in any securities regulatory
inspection, inquiry, investigation or proceeding or any judicial proceeding with
respect to Transamerica, AFSG, their affiliates and their representatives to the
extent that such inspection, inquiry, investigation or proceeding or judicial
proceeding is in connection with Contracts distributed under this Agreement.
Without limiting the foregoing:
(a) AFSG will be notified promptly of any customer complaint or notice of
any regulatory inspection, inquiry investigation or proceeding or judicial
proceeding received by Transamerica with respect to AFSG or any representative
or which may affect Transamerica's issuance of any Contracts marketed under this
Agreement; and
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(b) AFSG will promptly notify Transamerica of any customer complaint or
notice of any regulatory inspection, inquiry, investigation or judicial
proceeding received by AFSG or any representative with respect to Transamerica
or its affiliates in connection with any Contracts distributed under this
Agreement.
In the case of a customer complaint, AFSG and Transamerica will cooperate
in investigating such complaint and shall arrive at a mutually satisfactory
response.
13. Termination.
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(a) This Agreement may be terminated by either party hereto upon 60 days'
prior written notice to the other party.
(b) This Agreement may be terminated upon written notice of one party to
the other party hereto in the event of bankruptcy or insolvency of such party to
which notice is given.
(c) This Agreement may be terminated at any time upon the mutual written
consent of the parties hereto.
(d) AFSG shall not assign or delegate its responsibilities under this
Agreement without the written consent of Transamerica.
(e) Upon termination of this Agreement, all authorizations, rights and
obligations shall cease except the obligations to settle accounts hereunder,
including payments or premiums or contributions subsequently received for
Contracts in effect at the time of termination or issued pursuant to
applications received by Transamerica prior to termination.
14. Regulatory Impact. This Agreement shall be subject to, among other
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laws, the provisions of the 1940 Act and the 1934 Act and the rules,
regulations, and
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rulings thereunder and of the NASD, from time to time in effect, including such
exemptions from the 1940 Act as the SEC may grant, and the terms hereof shall be
interpreted and construed in accordance therewith.
AFSG shall submit to all regulatory and administrative bodies having
jurisdiction over the operations of the Account, present or future; and will
provide any information, reports or other material which any such body by reason
of this Agreement may request or require pursuant to applicable laws or
regulations.
15. Severability. If any provision of this Agreement shall be held or
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made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
16. Choice of Law. This Agreement shall be construed, enforced and
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governed by the laws of the State of Iowa.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective duly authorized officials as of the day and year
first above written.
AFSG SECURITIES CORPORATION TRANSAMERICA LIFE
INSURANCE COMPANY
By:________________________ By:____________________________
Xxxx X. Xxxxxxxxxx Xxxxx X. Xxxx
Title: Vice President and Title: Vice President
Chief Compliance Officer
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EXHIBIT A
Separate Accounts
1. Separate Account VA A
2. Separate Account VA B
3. Separate Account VA C
4. Separate Account VA D
5. Separate Account VA E
6. Separate Account VA F
7. Separate Account VA I
8. Separate Account VA J
9. Separate Account VA K
9. Retirement Builder Variable Annuity Account
10. Separate Account VL A
11. Legacy Builder Variable Life Separate Account
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