EXHIBIT (9)(a)
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
USAA LIFE INVESTMENT TRUST
AND
USAA LIFE INSURANCE COMPANY
TRANSFER AGENT AGREEMENT
AGREEMENT made as of this 16th day of December, 1994 by and between the
USAA Life Investment Trust (the "Trust"), a Delaware trust, and USAA Life
Insurance Company (the "Company"), a stock life insurance company organized
under the laws of the State of Texas.
WITNESSETH THAT:
WHEREAS, the Company will be the issuer of certain variable annuity
contracts (the "Contracts"), will fund the Contracts through the Separate
Account of USAA Life Insurance Company (the "Account"), wishes to invest the
assets of the Account in shares of beneficial interest (the "shares") of the
Trust for the benefit of the owners of the Contracts (the "Contractowners"), and
wishes to have the Company provide, directly or through agents, transfer agent
services to the Trust; and
WHEREAS, the Company will serve as the depositor of the Account, which is a
unit investment trust registered as an investment company under the Investment
Company Act of 1940 (the "1940 Act"), and the security interests deemed to be
issued by the Account under the Contracts will be registered as securities under
the Securities Act of 1933 (the "1933 Act"); and
WHEREAS, the Trust will be an open-end management investment company
established to make its shares available for purchase exclusively by the Account
and intends to offer shares of the USAA Life Variable Annuity Money Market Fund,
the USAA Life Variable Annuity Income Fund,
the USAA Life Variable Annuity Growth and Income Fund, the USAA Life Variable
Annuity World Growth Fund, and the USAA Life Variable Annuity Diversified Assets
Fund (such funds, together with all other funds subsequently established by the
Trust and made subject to this Agreement in accordance with section 16 hereof,
being hereinafter referred to as the "Funds") to corresponding subaccounts of
the Account funding the Contracts issued by the Company, another separate
account(s) that USAA Life may establish in the future to fund variable insurance
products issued by the Company, or directly to the Company (the "shareholders")
and wishes to have the Company provide, directly or through agents, transfer
agent services to the Trust; and
WHEREAS, the Trust wishes to have the Company provide, directly or through
agents, transfer agent services to the Trust, and the Company, pursuant to this
authority, has entered into a third party administration agreement with Vantage
Computer Systems, Inc. ("Vantage"), pursuant to which the Company has appointed
Vantage as recordkeeping service agent for the Contracts and the Trust; and
WHEREAS, the Trust will be an investment company registered as an
investment company under the 1940 Act and whose shares will be registered as
securities under the 1933 Act; and
WHEREAS, USAA IMCO, as an indirect subsidiary of the Company's parent, has
agreed to serve as investment adviser for the Trust pursuant to an investment
advisory agreement with the Trust that provides for USAA IMCO to provide certain
accounting services to the Trust, including the valuation of the assets of each
Fund and USAA; and
WHEREAS, the Company, the Trust and USAA IMCO have entered into an
underwriting and administrative services agreement, pursuant to which the Trust
has appointed USAA IMCO as
the principal underwriter and distributor of the Trust to sell its shares to the
Separate Account; pursuant to which the Company or its agent, on behalf of USAA
IMCO, will keep for the Trust certain records regarding contributions, or
withdrawals, from the Separate Account investing in the Trust, as well as all
other records required by the Securities Exchange Act of 1934 and rules
thereunder with respect to the issuance, redemption or repurchase of the shares;
and pursuant to which the Company will provide certain management,
administrative, legal, clerical, accounting and recordkeeping services to the
Trust not provided through other agreements;
NOW THEREFORE, in consideration of the Trust's making its shares available
for purchase by the Company for its Account, for the Company's providing
transfer agent services to the Trust, for the Trust's reimbursing the Company
for all expenses it incurs in performing services hereunder, and for other good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the Trust appoints the Company as Transfer Agent for the shares
and Dividend Disbursing Agent for the Trust, and the Company accepts said
appointment, subject to the following terms and conditions:
1. DOCUMENTS
(a) In connection with the appointment of the Company as Transfer Agent,
the Trust shall file with the Company the following documents:
(i) A certified copy of the Certificate of Trust of the Trust and any
amendments thereto;
(ii) A certified copy of the Master Trust Agreement of the Trust and
any amendments thereto;
(iii) A certified copy of the By-Laws of the Trust as amended to
date;
(iv) A copy of the resolution of the Board of Trustees of the Trust
authorizing this Agreement; and
(v) An opinion of counsel for the Trust with respect to the validity
of the shares, the number of shares authorized, the number of shares
allocated to each Fund, the status of redeemed or repurchased shares and
the number of shares of each Fund with respect to which a registration
statement under the 1933 Act has been filed and is in effect.
(b) The Trust will also furnish to the Company from time to time the
following documents:
(i) Each resolution of the Board of Trustees of the Trust authorizing
the original issue of the shares or affecting the status of redeemed or
repurchased shares;
(ii) Each registration statement filed with the Securities and
Exchange Commission under the 1933 Act or under the 1940 Act and amendments
thereof, orders relating thereto and prospectuses and statements of
additional information (hereinafter collectively referred to as
"prospectus") in effect with respect to the sale of the shares;
(iii) A certified copy of each amendment to the Certificate of Trust,
the Master Trust Agreement or the By-Laws of the Trust;
(iv) Certified copies of each resolution of the Board of Trustees
authorizing officers to give instructions to the Transfer Agent; and
(v) Such other documents or opinions which the Company may, in its
discretion, reasonably deem necessary or appropriate in the proper
performance of its duties.
2. AUTHORIZED SHARES
The Trust certifies to the Company that as of the close of business on the
date of this Agreement, it has authorized an unlimited number of shares and
certifies that by virtue of its Certificate of Trust, its Master Trust
Agreement, and the provisions of the laws of the state of its organization,
shares that are redeemed or repurchased by the Trust from the holder will be
restored to the status of authorized and unissued shares.
3. THE COMPANY TO ISSUE AND REGISTER SHARES
The Company shall issue and record the issuance of the shares. The Company
shall notify the Trust and its "Custodian" (which term, whenever used herein,
shall mean each Custodian for the one or more Funds affected by the transaction
referred to) of every issuance, which notice shall include the date, name of
Fund, number of shares, and dollar amount of the transaction.
The Company shall compute the number of shares issuable in the case of an
order for a dollar amount of shares (or the purchase price in the case of an
order for a specific number of shares) at the net asset value per share for the
Trust, as described in the then-current prospectus or statement of additional
information (collectively, the "prospectus") of the Trust, unless the Board of
Trustees of the Trust should otherwise direct.
4. NOTICE OF DISTRIBUTION
The Trust shall promptly inform the Company of the declaration of any
dividend or distribution on account of the shares, including the amount per
share, record date, date payable and name of Fund.
5. DISTRIBUTIONS
The Company shall act as Dividend Disbursing Agent for the Trust, and, as
such, in accordance with the provisions of the Certificate of Trust, the Master
Trust Agreement and the then-current prospectus of the Trust, shall distribute
or credit income and capital gain payments to shareholders. The Trust will
notify the Company of and cause the Custodian to make available to the Company
out of the assets of the appropriate Fund, the amount of any such payment to be
paid out in cash. The Company shall process the reinvestment of distributions
in each Fund at the net asset value per share for that Fund next computed after
the payment, in accordance with the then-current prospectus of the Trust. The
Company shall notify the Trust and the Custodian as to the number, name of Fund,
dollar amount and date of issue of shares by reinvestment of each distribution.
6. REDEMPTIONS AND REPURCHASES
The Company shall process each redemption or repurchase of shares at the
net asset value per share of that Fund, as described in the then-current
prospectus of the Trust, unless the Board of Trustees of the Trust should
otherwise direct. Where redemption or repurchase of a dollar amount is
required, the Company shall calculate the number of shares to be redeemed or
repurchased so as to provide the shareholder with the dollar value required, and
where a stated number of shares is
required, the Company shall compute the dollar amount of the proceeds. In either
case, the Company shall notify the Trust of the number and the name of the Fund
out of which the shares are to be redeemed or repurchased, and the dollar amount
and date of the redemption or repurchase and shall direct the Trust to make the
required amount of proceeds available to the shareholder out of the assets of
that Fund. The Trust shall cause the Custodian to make such proceeds available
not more than seven calendar days after receipt of the redemption or repurchase
request.
7. PROCESSING TRANSACTIONS
In calculating the number of shares to be issued on purchase or
reinvestment, or redeemed or repurchased, or the amount of the purchase payment
or redemption or repurchase proceeds owed, the Company shall use the net asset
value per share computed by the Custodian or such other person as may be
designated by the Board of Trustees of the Trust.
The authority of the Company to process purchases, reinvestments,
redemptions and repurchases shall be suspended upon receipt of notification by
it of the suspension of the determination of the net asset value of the Trust,
until such suspension has been lifted.
8. BOOK AND RECORDS
(a) With respect to each Fund, the Company shall maintain records showing
for each shareholder's account the following:
(i) Names, address and tax identifying numbers;
(ii) Number of shares of the Fund held;
(iii) Historical information regarding transactions with respect to
the Fund, including purchases, redemptions, dividends and distributions,
transfers, and any other transactions, with date and price for all
transactions;
(iv) Any stop or restraining order placed against the account;
(v) Correspondence relating to the current maintenance of the
account;
(vi) Any information required in order for the Company to perform the
calculations contemplated or required by this Agreement; and
(vii) Such other records as the Trust may from time to time
reasonably request and any other document pertinent to the above.
Any such records required to be maintained by Rule 31a-1 of the General
Rules and Regulations under the 1940 Act shall be preserved by the Company for
the periods prescribed in Rule 31a-2 of said rules. Such record retention shall
be at the expense of the Company and records may be inspected by the Trust or
its designees at reasonable times, and, upon reasonable request of the Trust,
copies of records shall be provided at the Company's expense to the Trust or its
designee. The Company may, at its option at any time, and shall forthwith upon
the demand of the Trust, turn over to the Trust and cease to retain in the
Company's files, records and documents created and maintained by the Company
pursuant to this Agreement which are no longer needed by the Company in
performance of its services or for its protection. If not so turned over to the
Trust, such records and documents will be retained by the Company for six years
from the year of creation, during the first two of which such documents will be
in readily accessible form. At the end of the six year period, such records and
documents will either be turned over to the Trust, or destroyed in accordance
with the authorization of the Trust.
Any such records required to be maintained by Delaware Business Trust Act
shall be maintained by the Company upon the terms thereunder.
Any such records maintained by the Company pursuant to this Agreement are
deemed to be the property of the Trust and will be promptly surrendered or made
available to the Trust or its designee, without charge, except for reimbursement
of expenses for surrender of such documents, upon request by the Trust or upon
termination of this Agreement.
(b) The Company and the Trust agree that all books, records, information
and data pertaining to the business of the other party that 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.
9. INFORMATION TO BE FURNISHED
The Company shall furnish to the Trust such other information, including
statistical information, as needed to implement the provisions of this Agreement
and as may be agreed upon from time to time.
The Company shall report to the Trust regarding its performance under this
Agreement as may be reasonably requested by the Trust.
The Trust shall furnish to the Company such instructions and other
information as are needed to implement the provisions of this Agreement and as
may be agreed upon from time to time.
10. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS
As between the Trust and the Company in its capacity as Transfer Agent, the
Trust assumes full responsibility for the preparation, contents and distribution
of each prospectus of the Trust and for complying with all applicable
requirements of the 1933 Act, the 1940 Act, and any laws, rules and regulations
of governmental authorities having jurisdiction over the Trust, except as may be
specifically provided herein.
11. FORCE MAJEURE
The Company shall not be liable for loss of data occurring by reason of
circumstances beyond its control, including but not limited to acts of civil or
military authority, national emergencies, fire, flood or catastrophe, acts of
God, insurrection, war, riots, or failure of transportation, communication or
power supply. The Company shall use its best efforts to minimize the likelihood
of such damage, loss of data, delays or errors resulting from uncontrollable
events, and if such damage, loss of data, delays or errors occur, the Company
shall use its best efforts to mitigate the effects of such occurrence.
12. STANDARD OF CARE AND INDEMNIFICATION
(a) The Company shall at all times act in good faith and agrees to use its
best efforts within reasonable limits to ensure the accuracy of all services
performed under this Agreement, but assumes no responsibility and shall not be
liable for loss or damage due to errors; provided, that the Company shall
indemnify and hold the Trust harmless from all loss, cost, damage, and expense,
including reasonable attorneys' fees, incurred by the Trust as a result of the
Company's negligence, bad faith, or willful misfeasance in the performance of
its duties, or by reason of its reckless disregard of its obligations and duties
under this Agreement, or that of its officers, agents and employees, in the
performance of this Agreement.
(b) The Trust shall indemnify and hold the Company harmless from all loss,
cost, damage and expense, including reasonable attorneys' fees incurred by it
resulting from any claim, demand, action or suit in connection with the
performance of its duties hereunder, or the functions of Transfer and Dividend
Disbursing Agent or as a result of acting upon any instruction reasonably
believed by it to have been properly executed by a duly authorized officer of
the Trust, or upon any information, data, records or documents provided the
Company or its agents by computer tape, telex, CRT data entry or other similar
means authorized by the Trust; provided, that this indemnification shall not
apply to actions or omissions of the Company in cases of its own negligence, bad
faith or willful misfeasance in the performance of its duties, or by reason of
its reckless disregard of its obligations and duties under this Agreement, or
that of its officers, agents and employees, in the performance of this
Agreement.
In order that the indemnification provision contained in this section 12(a)
or that in section 12(b) shall apply, however, it is understood that if in any
case the one party (the "Indemnitor") may be asked to indemnify or save the
other party (the "Indemnitee") harmless, the Indemnitor shall be fully and
promptly advised of all pertinent facts concerning the matters in question, and
it is further understood that the Indemnitee will use all reasonable care to
identify and notify the Indemnitor promptly concerning any situation which
presents or appears likely to present the probability of such a claim for
indemnification against the Indemnitor. The Indemnitor shall have the option to
defend the Indemnitee against any claim which may be the subject of this
indemnification, and in the event that the Indemnitor so elects, it will so
notify the Indemnitee, and thereupon the Indemnitor shall take over complete
defense of the claim, and the Indemnitee shall in such situations incur no
further legal or other expenses for which it shall seek or be entitled to
indemnification under this section. The Indemnitee shall in no case confess any
claim or make any compromise in any case in which the Indemnitor will be asked
to indemnify the Indemnitee except with the Indemnitor's prior written consent.
(c) Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any act or
failure to act hereunder.
13. FURTHER ACTIONS
Each party agrees to perform such further acts and execute such further
documents as are necessary to effectuate the purposes hereof.
14. ADDITIONAL PORTFOLIOS
In the event that the Trust establishes one or more Funds in addition to
the five initial Funds with respect to which it desires to have the Company
render services as Transfer Agent and Dividend Disbursing Agent under the terms
hereof, it shall so notify the Company in writing, and if the Company agrees in
writing to provide such services, such Fund shall become a Fund hereunder. The
Company shall not unreasonably withhold approval of such new Fund.
15. ASSIGNMENT
(a) The Company may not assign this Agreement or delegate any of its
responsibilities hereunder without the express written consent of the Trust.
(b) This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
16. DELAWARE LAW TO APPLY
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the State of Delaware.
17. AMENDMENT AND TERMINATION
This Agreement may be modified or amended from time to time by written
agreement between the parties hereto. This Agreement may be terminated at any
time by not less than one hundred twenty (120) days' written notice given by one
party to the other.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above.
USAA LIFE INVESTMENT TRUST
BY: /s/_____________________________
XXXXX X. XXXXXX
President
ATTEST:
/s/_________________________
X.X. XXXXXXXX, XX.
Assistant Secretary
USAA LIFE INSURANCE COMPANY
BY: /s/_____________________________
XXXXX X. XXXXXX
President
ATTEST:
/s/_________________________
X.X. XXXXXXXX, XX.
Assistant Secretary
