EXHIBIT 4(d)
INVESTMENT SUBADVISORY AGREEMENT
AGREEMENT made as of the 1st day of July, 2004 (the Effective Date)
between USAA INVESTMENT MANAGEMENT COMPANY, a corporation organized under the
laws of the State of Delaware and having its principal place of business in San
Antonio, Texas (IMCO) and ▇▇▇▇▇▇ ▇▇▇▇▇▇ AND COMPANY, L.P., a Delaware Limited
Partnership having its principal place of business in Boston, Massachusetts
(▇▇▇▇▇▇).
WHEREAS, IMCO serves as the investment adviser to USAA Investment
Trust, a business trust organized under the laws of the Commonwealth of
Massachusetts (the Trust) and registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the 1940 Act); and
WHEREAS, under its Investment Advisory Agreement with the Trust
(Investment Advisory Agreement), IMCO is authorized to appoint subadvisers for
series of the Trust (each a Fund, or collectively Funds); and
WHEREAS, IMCO wishes to retain ▇▇▇▇▇▇ to render investment advisory
services to such series (or portions thereof) of the Trust as now or hereafter
may be identified in Schedule A to this Agreement, as such Schedule A may be
amended from time to time (each such series or portion thereof referred to
herein as a Fund Account and collectively as Fund Accounts); and
WHEREAS, ▇▇▇▇▇▇ is willing to provide such services to the Fund
Accounts and IMCO upon the terms and conditions and for the compensation set
forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, it is agreed between
the parties hereto as follows:
1. APPOINTMENT OF ▇▇▇▇▇▇. IMCO hereby appoints ▇▇▇▇▇▇ to act as an investment
adviser for each Fund Account in accordance with the terms and conditions of
this Agreement. ▇▇▇▇▇▇ will be an independent contractor and will have no
authority to act for or represent the Trust or IMCO in any way or otherwise be
deemed an agent of the Trust or IMCO except as expressly authorized in this
Agreement or another writing by the Trust, IMCO and ▇▇▇▇▇▇. ▇▇▇▇▇▇ accepts such
appointment and agrees to render the services herein set forth for the
compensation herein provided.
2. DUTIES OF ▇▇▇▇▇▇.
(A) AUTHORITY TO INVEST. Subject to the control and supervision of IMCO
and the Trust's Board of Directors (the Board), ▇▇▇▇▇▇, at its own expense,
shall have full discretion to manage, supervise and direct the investment and
reinvestment of Fund Accounts allocated to it by IMCO from time to time. It is
understood that a Fund Account may consist of all, a portion of, or none of the
assets of the Fund, and that IMCO has the right to allocate and reallocate such
assets to a Fund Account at any time. ▇▇▇▇▇▇ shall perform its duties described
herein in a manner consistent with the investment objective, policies and
restrictions set forth in the then current Prospectus and Statement of
Additional Information (SAI) for each Fund. Should
▇▇▇▇▇▇ anticipate materially modifying its investment process, it must provide
written notice in advance to IMCO, and any affected Prospectus and SAI should be
amended accordingly.
For each Fund set forth on Schedule A to this Agreement, ▇▇▇▇▇▇ shall
provide investment advice only with respect to the discrete portion of the
Fund's portfolio allocated to it by IMCO from time to time and shall not consult
with any other subadviser of such Fund concerning transactions for the Fund in
securities or other assets.
With respect to the management of each Fund Account pursuant to this
Agreement, ▇▇▇▇▇▇ shall determine what investments shall be purchased, held,
sold or exchanged by each Fund Account and what portion, if any, of the assets
of each Fund Account shall be held in cash or cash equivalents, and purchase or
sell portfolio securities for each Fund Account; except that, to the extent
▇▇▇▇▇▇ wishes to hold cash or cash equivalents in excess of 10% of a Fund
Account's assets, ▇▇▇▇▇▇ must request in writing and receive advance permission
from IMCO.
In accordance with Subsection (b) of this Section 2, ▇▇▇▇▇▇ shall
arrange for the execution of all orders for the purchase and sale of securities
and other investments for each Fund Account and will exercise full discretion
and act for the Trust in the same manner and with the same force and effect as
the Trust might or could do with respect to such purchases, sales, or other
transactions, as well as with respect to all other things necessary or
incidental to the furtherance or conduct of such purchases, sales, or other
transactions.
In the performance of its duties, ▇▇▇▇▇▇ will act in the best interests
of each Fund and will comply with (i) applicable laws and regulations,
including, but not limited to, the 1940 Act and the Investment Advisers Act of
1940, as amended (Advisers Act), and the rules under each, (ii) the terms of
this Agreement, (iii) the stated investment objective, policies and restrictions
of each Fund, as stated in the then-current Registration Statement of each Fund,
(iv) the Trust's compliance procedures and other policies, procedures or
guidelines as the Board or IMCO reasonably may establish from time to time, (v)
the provisions of the Internal Revenue Code of 1986, as amended (Code),
applicable to "regulated investment companies" (as defined in Section 851 of the
Code), as from time to time in effect, and (vi) the written instructions of
IMCO. ▇▇▇▇▇▇ shall establish compliance procedures reasonably calculated to
ensure compliance with the foregoing. IMCO shall be responsible for providing
▇▇▇▇▇▇ with the Trust's Declaration of Trust, as amended and supplemented, the
Trust's By-Laws and amendments thereto and current copies of the materials
specified in Subsections (a)(iii) and (iv) of this Section 2. IMCO shall provide
▇▇▇▇▇▇ with prior written notice of any material change to the Trust's
Registration Statement that would affect ▇▇▇▇▇▇' management of a Fund Account.
(B) PORTFOLIO TRANSACTIONS. In connection with the management of the
investment and reinvestment of the Fund Accounts' assets, ▇▇▇▇▇▇ will select the
brokers or dealers that will execute purchase and sale transactions for the Fund
Accounts, subject to the conditions herein. In the selection of broker-dealers
and the placement of orders for the purchase and sale of portfolio investments
for the Fund Accounts, ▇▇▇▇▇▇ shall use its best efforts to obtain for the Fund
Accounts the most favorable price and execution available, except to the extent
it may be permitted to pay higher brokerage commissions for brokerage and
research services as described below. In using its best efforts to obtain the
most favorable price and execution available, ▇▇▇▇▇▇, bearing in mind each
Fund's best interests at all times, shall consider all factors it deems
relevant, including by way
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of illustration, price, the size of the transaction, the nature of the market
for the security, the amount of the commission and dealer's spread or ▇▇▇▇-up,
the timing of the transaction taking into account market prices and trends, the
reputation, experience and financial stability of the broker-dealer involved,
the general execution and operational facilities of the broker-dealer and the
quality of service rendered by the broker-dealer in other transactions.
Subject to such policies as the Board may determine and to the extent
authorized by Section 28(e) of the Securities Exchange Act of 1934 (Exchange
Act), ▇▇▇▇▇▇ shall not be deemed to have acted unlawfully or to have breached
any duty created by this Agreement or otherwise solely by reason of its having
caused a Fund Account to pay a broker-dealer that provides brokerage and
research services to ▇▇▇▇▇▇ an amount of commission for effecting a portfolio
investment transaction in excess of the amount of commission another
broker-dealer offering equally good execution capability in the portfolio
investment would have charged for effecting that transaction if ▇▇▇▇▇▇
determines in good faith that such amount of commission was reasonable in
relation to the value of the brokerage and research services provided by such
broker-dealer, viewed in terms of either that particular transaction or ▇▇▇▇▇▇'
overall responsibilities with respect to the Fund and to other clients of ▇▇▇▇▇▇
as to which ▇▇▇▇▇▇ exercises investment discretion. The Board or IMCO may direct
▇▇▇▇▇▇ to effect transactions in portfolio securities through broker-dealers in
a manner that will help generate resources to pay the cost of certain expenses
that the Trust is required to pay or for which the Trust is required to arrange
payment.
On occasions when ▇▇▇▇▇▇ deems the purchase or sale of a security to be
in the best interest of a Fund as well as other clients of Loomis, Loomis, to
the extent permitted by applicable laws and regulations, may aggregate the
securities to be purchased or sold to attempt to obtain a more favorable price
or lower brokerage commissions and efficient execution. In such event,
allocation of the securities so purchased or sold, as well as the expenses
incurred in the transaction, will be made by ▇▇▇▇▇▇ in the manner it considers
to be the most equitable and consistent with its fiduciary obligations to the
Fund and to its other clients over time.
▇▇▇▇▇▇ may buy securities for a Fund Account at the same time it is
selling such securities for another client account and may sell securities for a
Fund Account at the time it is buying such securities for another client
account. In such cases, subject to applicable legal and regulatory requirements,
and in compliance with such procedures of the Trust as may be in effect from
time to time, ▇▇▇▇▇▇ may effectuate cross transactions between a Fund Account
and such other account if it deems this to be advantageous.
▇▇▇▇▇▇ will advise the Funds' custodian or such depository or agents as
may be designated by the custodian and IMCO promptly of each purchase and sale
of a portfolio security, specifying the name of the issuer, the description and
amount or number of shares of the security purchased, the market price, the
commission and gross or net price, the trade date and settlement date, the
identity of the effecting broker or dealer and any other pertinent data that the
Funds' custodian may need to settle a security's purchase or sale. ▇▇▇▇▇▇ shall
not have possession or custody of any Fund's investments. The Trust shall be
responsible for all custodial agreements and the payment of all custodial
charges and fees and, upon ▇▇▇▇▇▇ giving proper instructions to the custodian,
▇▇▇▇▇▇ shall have no responsibility or liability for the acts, omissions or
other conduct of the custodian, depository, or other agent designated by the
custodian and IMCO.
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Notwithstanding the foregoing, ▇▇▇▇▇▇ agrees that IMCO shall have the
right by written notice to identify securities that may not be purchased on
behalf of any Fund and/or brokers and dealers through which portfolio
transaction on behalf of the Fund may not be effected, including, without
limitation, brokers or dealers affiliated with IMCO. ▇▇▇▇▇▇ shall refrain from
purchasing such securities for a Fund Account or directing any portfolio
transaction to any such broker or dealer on behalf of a Fund Account, unless and
until the written approval of IMCO to do so is obtained. In addition, ▇▇▇▇▇▇
agrees that it shall not direct portfolio transactions for the Fund Accounts
through any broker or dealer that is an "affiliated person" (as that term is
defined in the 1940 Act or interpreted under applicable rules and regulations of
the Commission) of ▇▇▇▇▇▇, except as permitted under the 1940 Act. IMCO agrees
that it will provide ▇▇▇▇▇▇ with a list of brokers and dealers that are
affiliated persons of the Funds, or affiliated persons of such persons, and
shall timely update that list as the need arises. The Funds agree that any
entity or person associated with IMCO or ▇▇▇▇▇▇ that is a member of a national
securities exchange is authorized to effect any transaction on such exchange for
the account of the Funds that is permitted by Section 11(a) of the Exchange Act,
and the Funds consent to the retention of compensation for such transactions.
(C) EXPENSES. ▇▇▇▇▇▇, at its expense, will furnish all necessary
facilities and personnel, including salaries, expenses and fees of any personnel
required for them to faithfully perform their duties under this Agreement and
administrative facilities, including bookkeeping, and all equipment and services
necessary for the efficient conduct of ▇▇▇▇▇▇' duties under this Agreement.
However, ▇▇▇▇▇▇ shall not be obligated to pay any expenses of IMCO, the Trust or
the Funds, including without limitation, interest and taxes, brokerage
commissions and other costs in connection with the purchase or sale of
securities or other investment instruments for the Funds and custodian fees and
expenses.
(D) VALUATION. Securities traded on a national securities exchange or
the NASDAQ market for which market quotes are readily available are valued on
each day the New York Stock Exchange is open for business. For those securities
for which market quotes are not readily available, ▇▇▇▇▇▇, at its expense and in
accordance with procedures and methods established by the Board, which may be
amended from time to time, will provide assistance to IMCO in determining the
fair value of such securities, including providing market price information
relating to these assets of the Fund. ▇▇▇▇▇▇ also shall monitor for "significant
events" that occur after the closing of a market but before the Funds calculate
their net asset values and that may affect the valuation of any Fund Account's
portfolio securities and shall notify IMCO immediately of the occurrence of any
such events.
(E) REPORTS AND AVAILABILITY OF PERSONNEL. ▇▇▇▇▇▇, at its expense,
shall render to the Board and IMCO such periodic and special reports as the
Board and IMCO may reasonably request with respect to matters relating to the
duties of ▇▇▇▇▇▇ set forth herein. ▇▇▇▇▇▇, at its expense, will make available
to the Board and IMCO at reasonable times its portfolio managers and other
appropriate personnel in order to review investment policies of the Funds and to
consult with the Board and IMCO regarding the investment affairs of the Funds,
including economic, statistical and investment matters relevant to ▇▇▇▇▇▇'
duties hereunder.
(F) COMPLIANCE MATTERS. ▇▇▇▇▇▇, at its expense, will provide IMCO with
such compliance reports relating to its duties under this Agreement as may be
agreed upon by such
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parties from time to time. ▇▇▇▇▇▇ also shall cooperate with and provide
reasonable assistance to IMCO, the Trust's administrator, the Trust's custodian
and foreign custodians, the Trust's transfer agent and pricing agents and all
other agents and representatives of the Trust and IMCO, keep all such persons
fully informed as to such matters as they may reasonably deem necessary to the
performance of their obligations to the Trust and IMCO, provide prompt responses
to reasonable requests made by such persons and maintain any appropriate
interfaces with each so as to promote the efficient exchange of information.
(G) BOOKS AND RECORDS. ▇▇▇▇▇▇ will maintain for the Funds all books and
records required to be maintained by the Funds pursuant to the 1940 Act and the
rules and regulations promulgated thereunder insofar as such records relate to
the investment affairs of the Fund Accounts. Pursuant to Rule 31a-3 under the
1940 Act, ▇▇▇▇▇▇ agrees that: (i) all records it maintains for a Fund Account
are the property of the Fund; (ii) it will surrender promptly to a Fund or IMCO
any such records (or copies of such records) upon the Fund's or IMCO's request;
and (iii) it will preserve for the periods prescribed by Rule 31a-2 under the
1940 Act the records it maintains for any Fund Account. Notwithstanding
subsection (ii) above, ▇▇▇▇▇▇ may maintain copies of such records to comply with
its recordkeeping obligations.
(H) PROXIES. ▇▇▇▇▇▇ will, unless and until otherwise directed by IMCO
or the Board, vote proxies with respect to a Fund Account's securities and
exercise rights in corporate actions or otherwise in accordance with ▇▇▇▇▇▇'
proxy voting guidelines, as amended from time to time, which shall be provided
to IMCO.
3. ADVISORY FEE. IMCO shall pay to ▇▇▇▇▇▇ as compensation for ▇▇▇▇▇▇' services
rendered pursuant to this Agreement a fee based on the average daily net assets
of each Fund Account at the annual rates set forth in Schedule B, which schedule
can be modified from time to time, subject to any appropriate approvals required
by the 1940 Act. Such fees shall be calculated daily and payable monthly in
arrears within 15 business days after the end of such month. IMCO (and not the
Funds) shall pay such fees. If ▇▇▇▇▇▇ shall serve for less than the whole of a
month, the compensation as specified shall be prorated based upon the number of
calendar days during which this Agreement is in effect during such month, and
the fee shall be computed based upon the average daily net assets of a Fund
Account for such days.
4. REPRESENTATIONS AND WARRANTIES.
(A) ▇▇▇▇▇▇. ▇▇▇▇▇▇ represents and warrants to IMCO that (i) the
retention of ▇▇▇▇▇▇ by IMCO as contemplated by this Agreement is authorized by
▇▇▇▇▇▇' governing documents; (ii) the execution, delivery and performance of
this Agreement does not violate any obligation by which ▇▇▇▇▇▇ or its property
is bound, whether arising by contract, operation of law or otherwise; (iii) this
Agreement has been duly authorized by appropriate action of ▇▇▇▇▇▇ and when
executed and delivered by ▇▇▇▇▇▇ will be a legal, valid and binding obligation
of ▇▇▇▇▇▇, enforceable against ▇▇▇▇▇▇ in accordance with its terms, subject, as
to enforcement, to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general equitable principles (regardless of
whether enforcement is sought in a proceeding in equity or law); (iv) ▇▇▇▇▇▇ is
registered as an investment adviser under the Advisers Act; (v) ▇▇▇▇▇▇ has
adopted a written code of ethics complying with the requirements of Rule 17j-1
under the 1940 Act and that ▇▇▇▇▇▇ and certain of its employees, officers,
partners and directors
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are subject to reporting requirements thereunder and, accordingly, agrees that
it shall, on a timely basis, furnish a copy of such code of ethics to IMCO, and,
with respect to such persons, ▇▇▇▇▇▇ shall furnish to IMCO all reports and
information provided under Rule 17j-1(c)(2); (vi) ▇▇▇▇▇▇ is not prohibited by
the 1940 Act, the Advisers Act or other law, regulation or order from performing
the services contemplated by this Agreement; (vii) ▇▇▇▇▇▇ will promptly notify
IMCO of the occurrence of any event that would disqualify ▇▇▇▇▇▇ from serving as
investment manager of an investment company pursuant to Section 9(a) of the 1940
Act or otherwise; (viii) ▇▇▇▇▇▇ has provided IMCO with a copy of its Form ADV,
which as of the date of this Agreement is its Form ADV as most recently filed
with the SEC, and promptly will furnish a copy of all amendments to IMCO at
least annually; (ix) ▇▇▇▇▇▇ will notify IMCO of any "assignment" (as defined in
the ▇▇▇▇ ▇▇▇) of this Agreement or change of control of ▇▇▇▇▇▇, as applicable,
and any changes in the key personnel who are either the portfolio manager(s) of
any Fund Account or senior management of ▇▇▇▇▇▇, in each case prior to or
promptly after, such change; and (x) ▇▇▇▇▇▇ has adequate disaster recovery and
interruption prevention measures to ensure business resumption in accordance
with applicable law and within industry standards.
(B) IMCO. IMCO represents and warrants to ▇▇▇▇▇▇ that (i) the retention
of ▇▇▇▇▇▇ by IMCO as contemplated by this Agreement is authorized by the
respective governing documents of the Trust and IMCO; (ii) the execution,
delivery and performance of each of this Agreement and the Investment Advisory
Agreement does not violate any obligation by which the Trust or IMCO or their
respective property is bound, whether arising by contract, operation of law or
otherwise; (iii) each of this Agreement and the Investment Advisory Agreement
has been duly authorized by appropriate action of the Trust and IMCO and when
executed and delivered by IMCO will be a legal, valid and binding obligation of
the Trust and IMCO, enforceable against the Trust and IMCO in accordance with
its terms, subject, as to enforcement, to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or law); (iv) IMCO is registered as an investment adviser under the
Advisers Act; (v) IMCO has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and that IMCO and certain of its
employees, officers and directors are subject to reporting requirements
thereunder; (vi) IMCO is not prohibited by the 1940 Act, the Advisers Act or
other law, regulation or order from performing the services contemplated by this
Agreement; and (vii) IMCO will promptly notify ▇▇▇▇▇▇ of the occurrence of any
event that would disqualify IMCO from serving as investment manager of an
investment company pursuant to Section 9(a) of the 1940 Act or otherwise.
5. LIABILITY AND INDEMNIFICATION.
(A) ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall be liable for any and all losses, claims,
damages, liabilities or litigation (including reasonable legal and other
expenses) to which the Trust, a Fund, IMCO, any affiliated persons thereof
(within the meaning of the ▇▇▇▇ ▇▇▇) and any controlling persons thereof (as
described in Section 15 of the Securities Act of 1933, as amended (the 1933
Act)) (collectively, IMCO Indemnities) may become subject under the 1933 Act,
the 1940 Act, the Advisers Act, or under any other statute, at common law or
otherwise arising out of (i) any negligence, willful misconduct, bad faith or
reckless disregard of ▇▇▇▇▇▇ in the performance of any of its duties or
obligations hereunder or (ii) any untrue statement of a material fact contained
in the Prospectus and SAI, proxy materials, reports, advertisements, sales
literature, or other
6
materials pertaining to the Funds or the omission to state therein a material
fact known to ▇▇▇▇▇▇ which was required to be stated therein or necessary to
make the statements therein not misleading, if such statement or omission was
made in reliance upon information furnished to IMCO or the Trust by ▇▇▇▇▇▇
Indemnities (as defined below) for use therein. ▇▇▇▇▇▇ shall indemnify and hold
harmless the IMCO Indemnities for any and all such losses, claims, damages,
liabilities or litigation (including reasonable legal and other expenses).
(B) IMCO. IMCO shall be liable for any and all losses, claims, damages,
liabilities or litigation (including reasonable legal and other expenses) to
which ▇▇▇▇▇▇, any affiliated persons thereof (within the meaning of the ▇▇▇▇
▇▇▇) and any controlling persons thereof (as described in Section 15 of the 1933
Act) (collectively, ▇▇▇▇▇▇ Indemnities) may become subject under the 1933 Act,
the 1940 Act, the Advisers Act, or under any other statute, at common law or
otherwise arising out of (i) any negligence, willful misconduct, bad faith or
reckless disregard by IMCO in the performance of any of its duties or
obligations hereunder or (ii) any untrue statement of a material fact contained
in the Prospectus and SAI, proxy materials, reports, advertisements, sales
literature, or other materials pertaining to the Funds or the omission to state
therein a material fact known to IMCO which was required to be stated therein or
necessary to make the statements therein not misleading, unless such statement
or omission was made in reliance upon information furnished to IMCO or the
Trust. IMCO shall indemnify and hold harmless ▇▇▇▇▇▇ Indemnities for any and all
such losses, claims, damages, liabilities or litigation (including reasonable
legal and other expenses).
6. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall become
effective with respect to a Fund upon its execution; provided, however, that
this Agreement shall not become effective with respect to a Fund unless it has
first been approved in the manner required by the 1940 Act and rules thereunder
or in accordance with exemptive or other relief granted by the SEC or its staff.
This Agreement shall remain in full force and effect continuously thereafter,
except as follows:
(a) By vote of a majority of (i) the Board members who are not
"interested persons" (as defined in the ▇▇▇▇ ▇▇▇) of the Funds, IMCO, or ▇▇▇▇▇▇
(Independent Board Members) or (ii) the outstanding voting shares of a Fund,
such Fund may at any time terminate this Agreement, without the payment of any
penalty, by providing not more than 60 days' written notice delivered or mailed
by registered mail, postage prepaid, to IMCO and ▇▇▇▇▇▇.
(b) This Agreement will terminate automatically with respect to a Fund,
without the payment of any penalty, unless within two years after its initial
effectiveness and at least annually thereafter, the continuance of the Agreement
is specifically approved by (i) the Board or the shareholders of the Fund by the
affirmative vote of a majority of the outstanding shares of the Fund, and (ii) a
majority of the Independent Board Members, by vote cast in person at a meeting
called for the purpose of voting on such approval. If the continuance of this
Agreement is submitted to the shareholders of the Fund for their approval and
such shareholders fail to approve such continuance as provided herein, ▇▇▇▇▇▇
may continue to serve hereunder in a manner consistent with the 1940 Act and the
rules thereunder.
(c) IMCO may at any time terminate this Agreement with respect to a
Fund, without the payment of any penalty, by written notice delivered in person
or by facsimile, or mailed by
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registered mail, postage prepaid, to ▇▇▇▇▇▇. ▇▇▇▇▇▇ may at any time, without the
payment of any penalty, terminate this Agreement with respect to a Fund by not
less than 90 days' written notice delivered or mailed by registered mail,
postage prepaid, to IMCO.
(d) This Agreement automatically and immediately shall terminate with
respect to the Funds, without the payment of any penalty, in the event of its
assignment (as that term is defined in the 1940 Act or interpreted under
applicable rules and regulations of the Commission) or if the Investment
Advisory Agreement shall terminate for any reason.
(e) Any notice of termination served on ▇▇▇▇▇▇ by IMCO shall be without
prejudice to the obligation of ▇▇▇▇▇▇ to complete transactions already initiated
or acted upon with respect to a Fund.
Upon termination of this Agreement, the duties of IMCO delegated to
▇▇▇▇▇▇ under this Agreement automatically shall revert to IMCO. Notwithstanding
any termination of this Agreement with respect to a Fund, Sections 5, 10(a),
10(e), 11(a), and 11(c) of this Agreement shall remain in effect after any such
termination.
7. AMENDMENT OF AGREEMENT. No provision of this Agreement may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge or
termination is sought. No material amendment of this Agreement shall be
effective until approved in the manner required by the 1940 Act, any rules
thereunder or any exemptive or other relief granted by the SEC or its staff
(Applicable Law).
8. APPROVAL, AMENDMENT, OR TERMINATION BY INDIVIDUAL FUND. Any approval,
amendment, or termination of this Agreement by the holders of a majority of the
outstanding voting securities (as defined in the ▇▇▇▇ ▇▇▇) of any Fund shall be
effective to continue, amend or terminate this Agreement with respect to any
such Fund notwithstanding (i) that such action has not been approved by the
holders of a majority of the outstanding voting securities of any other Fund
affected thereby, and/or (ii) that such action has not been approved by the vote
of a majority of the outstanding voting securities of the Trust, unless such
action shall be required by any applicable law or otherwise.
9. SERVICES NOT EXCLUSIVE. The services of ▇▇▇▇▇▇ to IMCO in connection with the
Funds hereunder are not to be deemed exclusive, and ▇▇▇▇▇▇ shall be free to
render investment advisory services to others so long as its services hereunder
are not impaired thereby. It is understood that the persons employed by ▇▇▇▇▇▇
to assist in the performance of its duties hereunder will not devote their full
time to such services and nothing contained herein shall be deemed to limit or
restrict in any manner whatsoever the right of ▇▇▇▇▇▇ to engage in or devote
time and attention to other businesses or to render services of whatever kind or
nature. It is understood that IMCO may appoint at any time in accordance with
Applicable Law one or more subadvisers, in addition to ▇▇▇▇▇▇, or IMCO itself,
to perform investment advisory services to any portion of the Funds.
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10. ADDITIONAL AGREEMENTS.
(A) ACCESS TO INFORMATION. ▇▇▇▇▇▇ shall, upon reasonable notice, afford
IMCO at all reasonable times access to ▇▇▇▇▇▇' officers, employees, agents and
offices and to all its relevant books and records and shall furnish IMCO with
all relevant financial and other data and information as requested; provided,
however, that nothing contained herein shall obligate ▇▇▇▇▇▇ to provide IMCO
with access to the books and records of ▇▇▇▇▇▇ relating to any other accounts
other than the Funds.
(B) CONFIDENTIALITY. ▇▇▇▇▇▇, and its officers, employees and authorized
representatives, shall treat confidentially and as proprietary information of
the Trust all records and information relative to the Trust and prior, present
or potential shareholders, and will not use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except after prior notification to and approval in writing by the Trust, which
approval shall not be unreasonably withheld and may not be withheld where ▇▇▇▇▇▇
may be exposed to civil or criminal contempt proceedings for failure to comply,
when requested to divulge such information by duly constituted authorities, or
when so requested by the Trust.
(C) PRIVACY POLICY. ▇▇▇▇▇▇ acknowledges that nonpublic customer
information (as defined in Regulation S-P, including any amendments thereto) of
customers of the Funds received from IMCO is subject to the limitations on
redisclosure and reuse set forth in Section 248.11 of such Regulation, and
agrees such information (i) shall not be disclosed to any third party for any
purpose without the written consent of IMCO unless permitted by exceptions set
forth in Sections 248.14 or 248.15 of such Regulation and (ii) shall be
safeguarded pursuant to procedures adopted under Section 248.30 of such
Regulation if so required.
(D) PUBLIC ANNOUNCEMENTS. No party shall issue any press release or
otherwise make any public statements with respect to the matters covered by this
Agreement without the prior written consent of the other parties hereto, which
consent shall not be unreasonably withheld; provided, however, that consent
shall not be required if, in the opinion of counsel, such disclosure is required
by law; provided further, however, that the party making such disclosure shall
provide the other parties hereto with as much prior written notice of such
disclosure as is practical under the circumstances.
(E) NOTIFICATIONS. ▇▇▇▇▇▇ agrees that it will promptly notify IMCO in
the event that ▇▇▇▇▇▇ or any of its affiliates is or expects to become the
subject of an administrative proceeding or enforcement action by the Commission
or other regulatory body with applicable jurisdiction.
(F) INSURANCE. ▇▇▇▇▇▇ agrees to maintain errors and omissions or
professional liability insurance coverage in an amount that is reasonable in
light of the nature and scope of ▇▇▇▇▇▇' business activities.
(G) SHAREHOLDER MEETING AND OTHER EXPENSES. In the event that the Trust
shall be required to call a meeting of shareholders or send an information
statement or prospectus supplement to shareholders solely due to actions
involving ▇▇▇▇▇▇, including, without limitation, a change of control of ▇▇▇▇▇▇
or a portfolio manager change, ▇▇▇▇▇▇ shall bear all reasonable
9
expenses associated with such shareholder meeting, information statement, or
prospectus supplement.
11. MISCELLANEOUS.
(A) NOTICES. All notices or other communications given under this
Agreement shall be made by guaranteed overnight delivery, telecopy or certified
mail; notice is effective when received. Notice shall be given to the parties at
the following addresses:
IMCO: USAA Investment Management Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇-▇▇-▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Securities Counsel
▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(B) SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors.
(C) GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Texas, without giving effect to the conflicts of laws
principles thereof, and in accordance with the 1940 Act. To the extent that the
applicable laws of the State of Texas conflict with the applicable provisions of
the 1940 Act, the latter shall control.
(D) COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(E) HEADINGS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(F) ENTIRE AGREEMENT. This Agreement states the entire agreement of the
parties hereto, and is intended to be the complete and exclusive statement of
the terms hereof. It may not be added to or changed orally, and may not be
modified or rescinded except by a writing signed by the parties hereto and in
accordance with the 1940 Act.
(G) LIABILITY OF TRUSTEES AND SHAREHOLDERS. Any obligation of the Funds
under this Agreement are not binding upon the Trustees or the shareholders
individually but are binding only upon the assets and property of the Funds.
10
IN WITNESS WHEREOF, IMCO and ▇▇▇▇▇▇ have caused this Agreement to be
executed as of the date first set forth above.
Attest: USAA INVESTMENT MANAGEMENT COMPANY
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- ----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary Title: President
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
Attest: ▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY, L.P.
By: By:
-------------------------- -----------------------------------
Name: Name:
Title: Title:
11
SCHEDULE A
GROWTH & TAX STRATEGY FUND
12
SCHEDULE B
FEES
FUND ACCOUNT Rate per annum of the average
daily net assets
of the Fund Account
Growth & Tax Strategy Fund 0.20%
13