EXHIBIT 1.(8)(f)
Vanguard Participation Agreement
PARTICIPATION AGREEMENT
Among
VANGUARD VARIABLE INSURANCE FUNDS
and
THE VANGUARD GROUP, INC.
and
VANGUARD MARKETING CORPORATION
and
USAA LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into as of the 12th day of March,
2001, by and among VANGUARD VARIABLE INSURANCE FUNDS (hereinafter the "Fund"), a
Delaware business trust, THE VANGUARD GROUP, INC. (hereinafter the "Sponsor"), a
Pennsylvania corporation, VANGUARD MARKETING CORPORATION (hereinafter the
"Distributor"), a Delaware corporation, and USAA LIFE INSURANCE COMPANY
(hereinafter the "Company"), a Texas corporation, on its own behalf and on
behalf of each segregated asset account of the Company named in Schedule A
hereto as may be amended from time to time (each such account hereinafter
referred to as the "Account").
WHEREAS, the Fund was organized to act as the investment vehicle for
variable life insurance policies and variable annuity contracts to be offered by
separate accounts of insurance companies which have entered into participation
agreements with the Fund and the Sponsor (hereinafter "Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each designated a "Portfolio," and representing the interest
in a particular managed portfolio of securities and other assets; and
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act")
and its shares are registered under the Securities Act of 1933, as amended (the
"1933 Act"); and
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WHEREAS, the assets of each Portfolio of the Fund are managed by
several entities (the "Advisers"), each of which is duly registered as an
investment adviser under the federal Investment Advisers Act of 1940 and any
applicable state securities laws; and
WHEREAS, the Company has established or will establish one or more
Accounts to fund certain variable annuity and variable life insurance policies
(the "Variable Insurance Products"), which Accounts and Variable Insurance
Products are registered under the 1940 Act and the 1933 Act, respectively; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution in the Board of Directors of the
Company, on the date shown for each Account on Schedule A hereto, to set aside
and invest assets attributable to the Variable Insurance Products; and
WHEREAS, the Distributor is a wholly-owned subsidiary of the Sponsor,
is registered as a broker dealer with the Securities and Exchange Commission
("SEC") under the Securities Exchange Act of 1934, as amended (the "1934 Act")
and is a member in good standing of the National Association of Securities
Dealers, Inc. ("NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of the Portfolios on behalf
of each Account to fund the Variable Insurance Products and the Sponsor is
authorized to sell such shares to the Accounts at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund, the Sponsor and the Distributor agree as follows:
ARTICLE I. Sale of Fund Shares
1.1 The Sponsor and the Distributor agree to sell to the Company those
shares of the Portfolios of the Fund listed on Schedule B which each Account
orders. In the case of any such order received by the Fund or its designee on
any Business Day prior to the time the net asset value of shares of the Fund is
determined (the close of trading on the New York Stock Exchange, generally 4:00
p.m. Eastern time) (the "market close"), the order shall be accorded a trade
date on the Fund's accounting system that is the date of receipt of the order by
the Fund or its designee. In the case of any such order received by the Fund or
its designee on any Business Day after the market close, the order shall be
accorded a trade date on the Fund's accounting system that is the next Business
Day. For purposes of this Section 1.1, the Company shall be the designee of the
Fund for receipt of such orders from each Account and receipt by such designee
shall constitute receipt by the Fund; provided that the Fund receives notice of
such order by 8:30 a.m. Eastern time on the next following Business Day.
"Business Day" shall mean any day on which the New York Stock Exchange
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("NYSE") is open for trading and on which the Fund calculates its net asset
value pursuant to the rules of the SEC.
1.2 The Fund, subject to the provisions of Article IX of this
Agreement, agrees to make its shares available indefinitely for purchase at the
applicable net asset value per share by the Company and its Accounts on those
days on which the Fund calculates its net asset value pursuant to the rules of
the SEC and the Fund shall use its best efforts to calculate such net asset
value on each day which the NYSE is open for trading. Notwithstanding the
foregoing, the Board of Trustees of the Fund (hereinafter the "Board") may
refuse to sell shares of any Portfolio to any person including, but not limited
to, the Company, or suspend or terminate the offering of shares of any Portfolio
if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board, acting in good faith
and in light of their fiduciary duties under federal and any applicable state
laws, necessary in the best interests of the shareholders of such Portfolio.
Further, it is acknowledged and agreed that the availability of shares of the
Fund shall be subject to the Fund's then current prospectus and statement of
additional information, federal and state securities laws and applicable rules
and regulations of the Securities and Exchange Commission and the National
Association of Securities Dealers, Inc.
1.3 The Fund and the Sponsor agree that shares of the Fund will be
sold only to Participating Insurance Companies and their separate accounts. No
shares of any Portfolio will be sold to the general public.
1.4 The Fund and the Sponsor will not sell Fund shares to any
Participating Insurance Company or its separate account unless an agreement
containing a provision substantially the same as Section 2.4 of Article II of
this Agreement is in effect to govern such sales.
1.5 The Fund agrees to redeem for cash, on the Company's request, any
full or fractional shares of the Fund held by an Account. In the case of any
such request for redemption received by the Fund or its designee on any Business
Day prior to the market close, the request shall be accorded a trade date on the
Fund's accounting system that is the date of receipt of the request by the Fund
or its designee. In the case of any such request for redemption received by the
Fund or its designee on any Business Day after the market close, the request
shall be accorded a trade date on the Fund's accounting system that is the next
Business Day. For purposes of this Section 1.5, the Company shall be the
designee of the Fund for receipt of requests for redemption from each Account
and receipt by such designee shall constitute receipt by the Fund; provided that
the Fund receives notice of such request for redemption by 8:30 a.m. Eastern
time on the next following Business Day. Notwithstanding the foregoing, if the
payment of redemption proceeds on the next Business Day would require the Fund
to dispose of Portfolio securities or otherwise incur substantial additional
costs, the Fund may determine to settle one or more redemption transactions on a
delayed basis, in which case proceeds shall be wired to the Company with seven
(7) days and
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the Fund shall notify the Company of such a delay by 3:00 Eastern time on the
same Business Day that the Company transmits the redemption order to the Fund.
Furthermore, notwithstanding the foregoing, the Fund reserves the right to
suspend redemption privileges or pay redemptions in kind, as disclosed in the
Fund's prospectus or statement of additional information. The Fund agrees to
treat the Company like any other shareholder in similar circumstances in making
these determinations.
1.6 The Company agrees to purchase and redeem the shares of each
Portfolio offered by the then current prospectus of the Fund and in accordance
with the provisions of such prospectus and the accompanying statement of
additional information.
1.7 With respect to payment of the purchase price by the Company and
of redemption proceeds by the Fund, the Company and the Fund shall net all
purchase and redemption orders on a given Business Day and shall transmit one
net payment for all of the Portfolios in accordance with Section 1.8 hereof.
1.8 In the event of net purchases, the Company shall pay for Fund
shares by 4:00 p.m. Eastern time on the next Business Day after an order to
purchase the Shares is received by the Company in accordance with the provisions
of Section 1.1 hereof. In the event of net redemptions, the Fund shall pay the
redemption proceeds by 4:00 p.m. Eastern time on the next Business Day after an
order to redeem the shares is received by the Company in accordance with the
provisions of Section 1.5 hereof. If net redemption proceeds are not received by
4:00 p.m. Eastern time on such next Business Day, the Fund will reimburse the
Company for all costs reasonably incurred as a result of the delay. Payment
shall be in federal funds transmitted by wire. For purposes of Section 2.10,
upon receipt by the Fund of the federal funds so wired, such funds shall cease
to be the responsibility of the Company and shall become the responsibility of
the Fund. If the Company fails to pay for Fund shares as required by this
Section 1.8, then the Fund shall be entitled to redeem the shares to cover the
cost. The Company shall be responsible for any shortfall between the purchase
and the redemption; the Fund shall be entitled to retain any gain.
1.9 Issuance and transfer of a Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or any Account.
Shares ordered from the Fund will be recorded in an appropriate title for each
Account or the appropriate subaccount of each Account. The Fund shall furnish to
the Company the CUSIP number assigned to each Portfolio of the Fund identified
in Schedule B hereto.
1.10 The Fund shall furnish advance notice, as practicable, but at the
latest same day notice (by wire or telephone, followed by written confirmation)
to the Company of any income, dividends or capital gain distributions on the
Fund's shares. The Company hereby elects to receive all such income, dividends
and capital gain distributions as are payable on the Portfolio shares in
additional shares of that Portfolio. The Company reserves the right to
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revoke this election and to receive all such income dividends and capital gain
distributions in cash. The Fund shall notify the Company of the number of shares
so issued as payment of dividends and distributions.
1.11 The Fund shall make the daily net asset value, dividend and
capital gain Information for each Portfolio available on a per share basis to
the Company as soon as reasonably practical after the information is calculated
(normally by 6:30 p.m. Eastern time) and shall use its best efforts to make such
net asset value per share available by 7:00 p.m. Eastern time on each Business
Day. Related to this obligation, the Fund shall provide a contact name or names
and telephone numbers of the persons responsible for providing daily net asset
value, dividend and capital gain information to the Company. If the Fund
provides materially incorrect share net asset value information, the Fund, in
cooperation with the Company, shall make an adjustment to the number of shares
purchased or redeemed for the Accounts to reflect the correct net asset value
per share. Any material error in the calculation or reporting of net asset value
per share, dividend or capital gains information shall be reported promptly upon
discovery by the Company. The Fund or the Sponsor shall forthwith reimburse the
Account and Variable Insurance Product owners for any loss caused by any error
in its calculation of net asset value, dividend and capital gain information.
ARTICLE II. Representations and Warranties
2.1 The Company represents and warrants that it is an insurance
company duly organized and in good standing under applicable law, that it has
legally and validly established each Account prior to any issuance or sale
thereof as a segregated asset account under applicable state law, and that it
has registered each Account as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as segregated investment accounts for the
Variable Insurance Products. The Company further represents and warrants that
the Variable Insurance Products are or will be registered under the 1933 Act and
will be issued and sold in compliance in all materials respects with all
applicable federal and state laws and with state insurance suitability
requirements.
2.2 The Fund represents and warrants that Fund shares sold pursuant
to this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance with the laws of the State of Texas and all
applicable federal and state securities laws and that the Fund is and shall
remain registered under the 0000 Xxx. The Fund shall amend the registration
statement for its shares under the 1933 Act and the 1940 Act from time to time
as required in order to effect the continuous offering of its shares. The Fund
shall register and qualify the shares for sale in accordance with the laws of
the various states only if and to the extent deemed advisable by the Fund, the
Distributor, or the Sponsor.
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2.3 The Fund represents that it is qualified as a Regulated Investment
Company under Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"), and that it will make every effort to maintain qualification (under
Subchapter M or any successor or similar provision) and (ii) it will notify the
Company immediately upon having a reasonable basis for believing that it ceased
to so qualify or that it might not so qualify in the future. The Fund
acknowledges that any failure to qualify as a Regulated Investment Company will
eliminate the ability of the subaccounts to avail themselves of the "look
through" provisions of Section 817(h) of the Code, and that as a result the
Variable Insurance Products will almost certainly fail to qualify as annuities
or life insurance contracts under Section 817(h) of the Code.
2.4 The Company represents that the Variable Insurance Products will be
treated as annuities or life insurance contracts under applicable provisions of
the Code and that it will make every effort to maintain such treatment and that
it will notify the Fund and the Sponsor immediately upon having a reasonable
basis for believing that the Variable Insurance Products have ceased to be so
treated or that they might not be so treated in the future.
2.5 The Fund currently does not intend to make any payments to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act or otherwise.
2.6 The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states
except that the Fund represents that the Fund's investment policies, fees and
expenses are and shall at all times remain in compliance with the laws of the
State of Texas and the Fund and the Sponsor represent that their respective
operations are and shall at all times remain in material compliance with the
laws of the State of Texas to the extent required to perform this Agreement.
2.7 The Distributor represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Distributor further represents that it will sell and distribute the Fund shares
in accordance with the laws of the State of Texas and all applicable state and
federal securities laws, including without limitation the 1933 Act, the 1934
Act, and the 0000 Xxx.
2.8 The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Delaware and that it does and will comply in all
material respects with the 1940 Act and any applicable regulations thereunder.
2.9 The Sponsor represents and warrants that the Advisers to the Fund are
and the Sponsor shall use its best effort to cause the Advisers to, remain duly
registered in all material respects under all applicable federal and state
securities laws and to perform their obligations for the Fund in compliance in
all material respects with the laws of the State of
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Texas and any applicable state and federal securities laws.
2.10 The Fund and the Sponsor represent and warrant that all of their
trustees, directors, officers, employees, investment advisers, and other
individuals/entities dealing with the money and/or securities of the Fund are
and shall continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than the
minimum coverage required currently by Rule 17g-1 under the 1940 Act or other
applicable laws or regulations as may be promulgated from time to time. The
aforesaid bond shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company.
2.11 With respect to the Accounts, which are registered under the 1940
Act, the Company represents and warrants that:
(a) USAA Investment Management Company is the principal underwriter
for each such Account and any subaccounts thereof and is a
registered broker-dealer with the SEC under the 1934 Act;
(b) the shares of the Portfolios of the Fund are and will continue
to be the only investments securities held by the corresponding
subaccounts;
(c) the number of Portfolios of the Fund available for investment by
the Accounts will not constitute a majority of the total number
of mutual funds or portfolio selections available for investment
by the Accounts in any Variable Insurance Product; and
(d) with regard to each Portfolio, the Company, if permitted by law,
on behalf of the corresponding subaccount, will:
(i) vote such shares held by it in the same proportion as the
vote of all other holders of such shares; and
(ii) refrain from substituting shares of another security for
such shares unless the SEC has approved such substitution
in the manner provided in Section 26 of the 0000 Xxx.
2.12 The Fund represents that it will comply with all provisions of the
1940 Act requiring voting by shareholders, and in particular the Fund will
either provide for annual meetings or comply with Section 16(c) of the 1940 Act
(although the Fund is not one of the trusts described in Section 16(c) of that
Act) as well as with Sections 16(a) and, if and when applicable, 16(b). Further,
the Fund will act in accordance with the SEC's interpretation of the
requirements of Section 16(a) with respect to periodic elections of trustees and
with whatever rules the SEC may promulgate with respect thereto.
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ARTICLE III. Offering Documents and Reports
3.1 The Fund, the Sponsor or their designee shall provide the Company
(at the Sponsor's expense) with as many copies of the Fund's current prospectus
as the Company may reasonably request. The Company shall provide a copy of the
Fund's prospectus to each purchaser of the Variable Insurance Products. If
requested by the Company in lieu thereof, the Fund or the Sponsor shall provide
such documentation (including a final copy of the new prospectus as set in type
at the Fund's or the Sponsor's expense) and other assistance as is reasonably
necessary in order for the Company once each year (or more frequently if the
prospectus for the Fund is amended) to have the prospectus for the Variable
Insurance Products and the Fund's prospectus printed together in one document
(such printing to be at the Company's expense).
3.2 The Fund's prospectus shall state that the statement of additional
information for the Fund is available from the Sponsor (or in the Fund's
discretion, the prospectus shall state that the statement of additional
information is available from the Fund) and the Sponsor (or the Fund), at its
expense, shall print and provide such statement free of charge to the Company
and to any owner of a Variable Insurance Product or prospective owner who
requests such statement.
3.3 The Fund, at its own expense, shall provide the Company with copies
of its reports to shareholders, other communications to shareholders, and, if
required by applicable law, proxy material, in such quantity as the Company
shall reasonably require for distributing to Variable Insurance Produce owners.
The Fund shall provide to the Company the prospectuses and annual reports
referenced in this Agreement within fifteen (15) days prior to the Company's
obligation to mail, and the Company agrees to provide the Fund with advance
notice of such date. If the documents are not delivered to the Company within
ten (10) days of the Company's obligation to mail, the Fund shall reimburse the
Company for any extraordinary out-of-pocket costs (including, but not limited
to, overtime for printing and mailing).
ARTICLE IV. Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee, each piece of sales literature or other promotional
material in which the Fund, its Advisers or the Sponsor is named, at least ten
Business Days prior to its use. The Company may use such material in fewer than
ten Business Days if it receives the written consent of the Fund or its
designee. No such material shall be used if the Fund or its designee reasonably
objects to such use within ten Business Days after receipt of such material. In
connection with the identification of the Portfolios in any such material, the
use of the
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Sponsor's name or identification of the Portfolios shall be given no greater
prominence than any other mutual fund or portfolio selection offered in a
Variable Insurance Product.
4.2 The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Variable Insurance Products other than the
information or representations contained in the registration statement or
prospectus for the Fund shares, as such registration statement and prospectus
may be amended or supplemented from time to time, or in reports or proxy
statements for the Fund, or in sales literature or other promotional material
approved by the Fund or its designee or by the Sponsor, except with the
permission of the Fund or the Sponsor or the designee of either.
4.3 The Fund, Sponsor, Distributor or their designee shall furnish, or
shall cause to be furnished, to the Company or its designee, each piece of sales
literature or other promotional material in which the Company or an Account is
named at least ten Business Days prior to its use. No such material shall be
used if the Company or its designee reasonably objects to such use within ten
Business Days after receipt of such material.
4.4 The Fund, the Distributor and the Sponsor shall not give any
information or make any representations on behalf of the Company or concerning
the Company, each Account, or the Variable Insurance Products other than the
information or representations contained in a prospectus for the Variable
Insurance Products, as such prospectus may be amended or supplemented from time
to time, or in published reports for each Account which are in the public domain
or approved by the Company for distribution to contract owners, or in sales
literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5 The Fund will provide to the Company at least one complete copy of
all registration statements, prospectuses, statements of additional information,
reports, proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to the Fund or its shares, prior to or
contemporaneously with the filing of each document with the SEC or other
regulatory authorities.
4.6 The Company will provide to the Fund at least one complete copy of
all prospectuses, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemption, requests
for no action letters, and all amendments to any of the above, that relate to
the Variable Insurance Products or each Account, prior to or contemporaneously
with the filing of such document with the SEC or other regulatory authorities.
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4.7 The Company and the Fund shall also each promptly inform the other
of the results of any examination by the SEC (or other regulatory authorities)
that relates to the Variable Insurance Products, the Fund or its shares, and the
party that was the subject of the examination shall provide the other party with
a copy of relevant portions of any "deficiency letter" or other correspondence
or written report regarding any such examination.
4.8 The Fund and the Sponsor will provide the Company with as much
notice as is reasonable practicable of any proxy solicitation for any Portfolio,
and of any material change in the Fund's registration statement, particularly
any change resulting in a change to the prospectus for any Account. The Fund and
the Sponsor will cooperate with the Company so as to enable the Company to
solicit voting instructions from owners of Variable Insurance Products, to the
extent a solicitation is required by applicable law, or to make changes to its
prospectus in an orderly manner.
4.9 For purposes of this Article IV, the phrase "sales literature and
other promotional material" includes, but is not limited to, sales literature
(i.e., any written communication distributed or made generally available to
customers, including brochures, circulars, research reports, market letters,
form letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature, or published articles), educational or training materials or
other communications distributed or made generally available to some or all
agents or employees, and prospectuses, shareholder reports, and proxy materials.
ARTICLE V. Fees and Expenses
5.1 The Fund and Sponsor shall pay no fee or other compensation to the
Company under this Agreement. Nothing herein shall prevent the parties hereto
from otherwise agreeing to perform, and arranging for appropriate compensation
for, other services relating to the Fund and or to the Accounts.
5.2 All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund. The Fund shall see to it that all its
shares are registered and authorized for issuance in accordance with applicable
federal law and, if and to the extent deemed advisable by the Fund, in
accordance with applicable state laws prior to their sale. The Fund shall bear
the fees and expenses for the cost of registration and qualification of the
Fund's shares, preparation and filing of the Fund's prospectus and registration
statement, proxy materials and reports, setting the prospectus in type, setting
in type and printing the proxy materials and reports to shareholders (including
the costs of printing a prospectus that constitutes an annual report), the
preparation of all statements and notices required by any federal or state law,
all taxes on the issuance or transfer of the Fund's shares.
5.3 The Fund shall bear the expenses of printing, and the Company shall
bear the
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expenses of distributing, the Fund's prospectus to owners of Variable Insurance
Products issued by the Company. The Company shall bear the expenses of
distributing the Fund's proxy materials (to the extent such proxy solicitation
is required by law) and reports to owners of Variable Insurance Products.
ARTICLE VI. Diversification
6.1 The Fund will at all times invest money from the Variable Insurance
Products in such a manner as to ensure that the Variable Insurance Products will
be treated as variable contracts under the Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Fund and the
Sponsor represent and warrant that each Portfolio of the Fund will meet the
diversification requirements of Section 817(h) of the Code and Treasury
Regulation 1.817-5, relating to the diversification requirements for annuities
or life insurance contracts and any amendments or other modifications to such
Section or Regulations, as if those requirements applied directly to each such
Portfolio. In the event of a breach of this Article VI by the Fund, it will take
all reasonable steps (a) to notify Company of such breach and (b) to adequately
diversify each Portfolio of the Fund so as to achieve compliance with the grace
period afforded by Regulation 817-5.
6.2 The Fund and the Sponsor represent that each Portfolio will elect to
be qualified as a Regulated Investment Company under Subchapter M of the Code
and they will maintain such qualification (under Subchapter M or any successor
or similar provision).
ARTICLE VII. Indemnification
7.1 Indemnification by the Company
(a) The Company agrees to indemnify and hold harmless the Fund
and each trustee of the Board and officers and each person,
if any, who controls the Fund within the meaning of Section
15 of the 1933 Act, the Sponsor and the Distributor
(collectively, the "Indemnified Parties" for purposes of
this Section 7.1) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement
with the written consent of the Company) or litigation
(including legal and other expenses) to which the
Indemnified Parties may become subject under any statute or
regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions
in respect thereof) or settlements are related to the sale
or acquisition of the Fund's shares or the Variable
Insurance Products and:
(i) arise out of or are based upon any untrue
statements or alleged untrue statements of any
material fact contained in the
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prospectus for the Variable Insurance Products
or contained in the contract or policy or sales
literature for the Variable Insurance Products
(or any amendment or supplement to any of the
foregoing), or arise out of or are based upon
the omission or the alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements
therein not misleading, provided that this
agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission
or such alleged statement or omission was made
in reliance upon and in conformity with
information furnished to the Company by or on
behalf of the Fund for use in the prospectus for
the Variable Insurance Products or in the
contract or policy sales literature (or any
amendment or supplement) or otherwise for use in
connection with the sale of the Variable
Insurance Products or the Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus or sales literature of the
Fund not supplied by the Company, or persons
under its control) or unlawful conduct of the
Company or persons under its control, with
respect to the sale or distribution of the
Variable Insurance Products of Fund Shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in
a registration statement, prospectus, or sales
literature of the Fund or any amendment or
supplement thereto or the omission or alleged
omission to state therein a material fact
required to be stated therein or necessary to
make the statements therein not misleading if
such a statement or omission was made in
reliance upon information furnished to the Fund
by or on behalf of the Company; or
(iv) result from any failure by the Company to
provide the services and furnish the materials
under the terms of this Agreement; or
(v) arise out of or result from any material breach
of any representation and/or warranty made by
the Company in this Agreement or arise out of or
result from any material breach of this
Agreement by the Company;
as limited by and in accordance with the provisions of Section
7.1(b) and 7.1(c) hereof.
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(b) The Company shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject
by reason of such Indemnified Party's willful malfeasance, bad
faith, or gross negligence in the performance of such Indemnified
Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations or duties under this Agreement or to the
Fund, whichever is applicable.
(c) The Company shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing
within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have
been served upon such Indemnified Party (or after such Indemnified
Party shall have received notice of such service on a designated
agent), but failure to notify the Company of any such claim shall
not relieve the Company from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision. In case any such
action is brought against the Indemnified Parties, the Company shall
be entitled to participate, at its own expense, in the defense of
such action. The Company also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Company to such a party of the
Company's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel
retained by it, and the Company will not be liable to such party
under this agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
(d) The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Fund shares or the
Variable Insurance Products or the operation of the Fund.
7.2 Indemnification by the Sponsor
(a) The Sponsor agrees to indemnify and hold harmless the Company and
each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933Act
(collectively, the "Indemnified Parties" for purposes of this
Section 7.2) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written
consent of the Sponsor) or litigation (including legal and other
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expenses) to which the Indemnified Parties may become subject under
any statute or regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the sale or
acquisition of the Fund's shares or the Variable Insurance Products
and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
the registration statement or prospectus or sales literature
of the Fund (or any amendment or supplement to any of the
foregoing, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in
conformity with information furnished to the Sponsor or Fund
by or on behalf of the Company for use in the registration
statement or prospectus for the Fund or in sales literature
(or any amendment or supplement) or otherwise for use in
connection with the sale of the Variable Insurance Products
or Fund shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
prospectus or sales literature for the Variable Insurance
Products not supplied by the Sponsor or persons under its
control) or unlawful conduct of the Fund, the Advisers or
persons under their control, with respect to the sale or
distribution of the Variable Insurance Products or Fund
shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a prospectus or
sales literature covering the Variable Insurance Products,
or any amendment or supplement thereto, or the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or
omission was made in reliance upon information furnished to
the Company by or on behalf of the Fund; or
(iv) result from any failure by the Sponsor or the Fund to
provide the services and furnish the materials under the
terms of this Agreement (including a failure to comply with
the diversification requirements specified in Article VI or
this Agreement); or
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(v) arise out of or result from any material breach of any
representation and/or warranty made by the Sponsor or the
Fund in this Agreement or arise out of or result from any
other material breach of this Agreement by the Sponsor or
the Fund;
as limited by and in accordance with the provisions of Sections
7.2(b) and 7.2(c) hereof.
(b) The Sponsor shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject
by reason of such Indemnified Party's willful misfeasance, bad
faith, or gross negligence in the performance of such Indemnified
Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement or to the
Company or the Accounts, whichever is applicable.
(c) The Sponsor shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Sponsor in writing
within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have
been served upon such Indemnified Party (or after such Indemnified
Party shall have received notice of any such service on any
designated agent), but failure to notify the Sponsor of any such
claim shall not relieve the Sponsor from any liability which it may
have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In any
case any such action is brought against the Indemnified Parties, the
Sponsor will be entitled to participate, at its own expense, in the
defense thereof. The Sponsor also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Sponsor to such party of the Sponsor's
election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it,
and the Sponsor will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by
each party independently in connection with the defense thereof
other than reasonable costs of investigation.
(d) The Company agrees promptly to notify the Sponsor of the
commencement of any litigation or proceedings against it or any of
its officers or directors in connection with the issuance or sale of
the Variable Insurance Products or the operation of each Account.
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7.3 Indemnification by the Fund
(a) The Fund agrees to indemnify and hold harmless the Company, and each
of its directors and officers and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section
7.3) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Fund) or litigation (including legal and other expenses) to which the
Indemnified Parties may become subject under any statute or
regulation, at common law or otherwise, insofar as such losses, claims
damages, liabilities or expenses (or action in respect thereof) or
settlements resulting from the gross negligence, bad faith or willful
misconduct of the Board or any member thereof, are related to the
operations of the Fund and:
(i) arise as a result of any failure by the Fund to provide the
services and furnish the materials under the terms of this
Agreement (including a failure to comply with the diversification
requirements specified in Article VI of this Agreement); or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this Agreement
or arise out of or result from any other material breach of this
Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 7.3(b)
and 7.3(c) hereof.
(b) The Fund shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to
which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations
and duties under this Agreement or to the Company, the Fund, the
Sponsor or each Account, whichever is applicable.
(c) The Fund shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Fund in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon
such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but failure
to notify the Fund of any such claim shall not relieve the Fund from
any liability which it may have to the Indemnified Party
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against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against
the Indemnified Parties, the Fund will be entitled to participate, at
its own expense, in the defense thereof. The Fund also shall be
entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Fund to such
party or the Fund's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional
counsel retained by it, and the Fund will not be liable to such party
independently in connection with the defense thereof other than
reasonable costs of litigation.
(d) The Company and the Sponsor agree promptly to notify the Fund of the
commencement of any litigation or proceedings against it or any of its
respective officers or directors in connection with this Agreement,
the issuance or sale of the Variable Insurance Products, with respect
to the operation of an Account, or the sale or acquisition of shares
of the Fund.
7.4 Indemnification by the Distributor
(a) The Distributor agrees to indemnify and hold harmless the Company and
each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section
7.4) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Sponsor) or litigation (including legal and other expenses) to which
the Indemnified Parties may become subject under any statute or
regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements are related to the sale or acquisition of the
Fund's shares or the Variable Insurance Products and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement or prospectus or sales literature of the
Fund (or any amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission
or such alleged statement or omission was made in reliance upon
and in conformity with information furnished to the Distributor
or Fund by or on behalf of the Company for use in the
registration statement or prospectus for the Fund or in sales
literature (or any amendment or
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17
supplement) or otherwise for use in connection with the sale of
the Variable Insurance Products or Fund shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
prospectus or sales literature for the Variable Insurance
Products not supplied by the Distributor or persons under its
control) or unlawful conduct of the Fund, the Advisers or
persons under their control, with respect to the sale or
distribution of the Variable Insurance Products or Fund shares;
or
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a prospectus or sales literature
covering the Variable Insurance Products, or any amendment or
supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance
upon information furnished to the Company by or on behalf of the
Fund; or
(iv) result from any failure by the Distributor or the Fund to
provide the services and furnish the materials under the terms
of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Distributor or the
Fund in this Agreement or arise out of or result from any other
material breach of this Agreement by the Distributor of the
Fund;
as limited by and in accordance with the provisions of Sections
7.4(b) and 7.4(c) hereof.
(b) The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by
reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of
obligations and duties under this Agreement or to the Company or the
Accounts, whichever is applicable.
(c) The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Distributor in
writing within a
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18
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon
such Indemnified Party (or after such Indemnified Party shall have
received notice of any such service on any designated agent), but
failure to notify the Distributor of any such claim shall not relieve
the Distributor from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision. In any case any such
action is brought against the Indemnified Parties, the Distributor
will be entitled to participate, at its own expense, in the defense
thereof. The Sponsor also shall be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the action.
After notice from the Distributor to such party of the Distributor's
election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it,
and the Distributor will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by
each party independently in connection with the defense thereof other
than reasonable costs of investigation.
(d) The Company agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the
Variable Insurance Products or the operation of each account.
ARTICLE VIII. Applicable Law
8.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Texas.
8.2 This Agreement shall be subject to the provisions of the 1933, 1934
and 1940 Acts, and the rules and regulations and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may grant,
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE IX. Termination
9.1 Agreement shall continue in full force and effect until the first to
occur
of:
(a) termination by any party for any reason by sixty (60) days'
advance written notice delivered to the other parties; or
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(b) termination by the Company by written notice to the Fund and the
Sponsor with respect to any Portfolio based upon the Company's
determination that shares of such Portfolio are not reasonably
available to meet the requirements of the Variable Insurance
Products; or
(c) termination by the Company by written notice to the Fund and the
Sponsor with respect to any Portfolio in the event any of the
Portfolio's shares are not registered, issued or sold in
accordance with applicable state and/or federal law or such law
precludes the use of such shares as the underlying investment
media of the Variable Insurance Products issued or to be issued
by the Company; or
(d) termination by the Company by written notice to the Fund and the
Sponsor with respect to any Portfolio in the event that such
Portfolio ceases to qualify as a Regulated Investment Company
under Subchapter M of the Code or under any successor or similar
provision, or if the Company reasonably believes that the Fund
may fail to so qualify (in the event of such termination, the
Company shall withdraw all assets allocable to the separate
accounts from the Portfolio and shall reinvest such assets in a
different investment medium, including, but not limited to,
another Portfolio of the Fund); or
(e) termination by the Company by written notice to the Fund and the
Sponsor with respect to any Portfolio in the event that such
Portfolio fails to meet the diversification requirements as
specified in Article VI hereof (in the event of such termination,
the Company shall withdraw all assets allocable to the separate
accounts from the Portfolio and shall reinvest such assets in a
different investment medium, including, but not limited to,
another Portfolio of the Fund); or
(f) termination by the Fund, Sponsor, or Distributor by written
notice to the Company, if any of the Fund, Sponsor, or
Distributor shall determine, in its sole judgment exercised in
good faith, that the Company and/or its affiliated companies has
suffered a material adverse change in its business, operations,
or financial condition since the date of this Agreement or is the
subject of material adverse publicity; or
(g) termination by the Company by written notice to the Fund and the
Sponsor, if the Company shall determine, in its sole judgement
exercised in good faith, that either the Fund, Sponsor, or
Distributor has suffered a material adverse change in its
business, operations or
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financial condition since the date of this Agreement or is the
subject of material adverse publicity.
9.2 Notwithstanding any termination of this Agreement, the Fund and the
Sponsor shall at the option of the Company, continue to make available shares of
the Fund pursuant to the terms and conditions of this Agreement, for all
Variable Insurance Products in effect on the effective date of termination of
this Agreement (hereinafter referred to as "Existing Contracts"). Specifically,
without limitation, the owners of the Existing Contracts shall be permitted to
reallocate investments in the Fund, redeem investments in the Fund and/or invest
in the Fund upon the making of additional purchase payments under the Existing
Contracts.
9.3 The Company shall not redeem Fund shares attributable to the Variable
Insurance Products (as opposed to Fund shares attributable to the Company's
assets held in the Accounts) except (i) as necessary to implement Variable
Insurance Products owner initiated or approved transactions, or (ii) as required
by state and/or federal laws or regulations or judicial or other legal precedent
of general application (hereinafter referred to as a "Legally Required
Redemption"). Upon request, the Company will promptly furnish to the Fund and
the Sponsor the opinion of counsel for the Company (which counsel shall be
reasonably satisfactory to the Fund and the Sponsor) to the effect that any
redemption pursuant to clause (ii) above is a Legally Required Redemption.
Furthermore, except in cases where permitted under the terms of the Contracts,
the Company shall not prevent owners of Variable Insurance Products from
allocating payments to a Portfolio that was otherwise available under the
Contracts without first giving the Fund or the Sponsor 90 days notice of its
intention to do so.
ARTICLE X. Notices
Any notice shall be sufficiently given when sent by registered or certified
mail, overnight courier or facsimile to the other party at the address of such
party set forth below or at such other address as such party may from time to
time specify in writing to the other party.
If to the Fund: Vanguard Variable Insurance Funds
X.X. Xxx 0000
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx
If to the Sponsor: The Vanguard Group, Inc.
X.X. Xxx 0000
Xxxxxx Xxxxx, XX 00000
Attn: R. Xxxxxxx Xxxxxx
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If to the Distributor: Vanguard Marketing Corporation
X.X. Xxx 0000
Xxxxxx Xxxxx, XX 00000
Attn: R. Xxxxxxx Xxxxxx
If to the Company: USAA Life Insurance Company
0000 Xxxxxxxxxxxxxx Xxxx, X-0-X
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Vice President, Life & Health Insurance
General Counsel
ARTICLE XI. Miscellaneous
11.1 It is understood and stipulated that neither the shareholders of any
Portfolio nor the officers or trustees of the Fund shall be personally liable
hereunder.
11.2 Subject to the requirements of the legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the owners of the Variable Insurance Products and all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by this Agreement, shall not (unless it has obtained the express
written consent of the affected party) disclose, disseminate or utilize such
names and addresses and other confidential information until such time as it may
come into the public domain.
11.3 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
11.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
11.5 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.
11.6 Each party hereto shall cooperate with each party and all appropriate
governmental authorities (including without limitation the SEC, the NASD and
state insurance regulators) and shall permit such authorities reasonable access
to its books and records in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated hereby.
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11.7 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
11.8 This Agreement or any of the rights and obligations hereunder may not
be assigned by any party without the prior written consent of all parties
hereto.
11.9 The Company shall furnish, or cause to be furnished, to the Fund or
its designee copies of the following:
(a) the Company's Annual Financial Statement on Statutory Basis as
soon as practical and in any event within 90 days after the end
of each fiscal year; and
(b) any registration statements, prospectuses or other materials
distributed in connection with the sale of the Variable Insurance
Products to the extent such registration statements, prospectuses
or other materials reference the Fund.
11.10 This Agreement, including any Schedule hereto, may be amended or
modified only by written instrument, executed by duly authorized officers of the
parties.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative as of the date specified above.
VANGUARD VARIABLE INSURANCE FUND
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------
Title: Assistant Secretary
-----------------------------
THE VANGUARD GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
------------------------------
Title: Principal
-----------------------------
VANGUARD MARKETING CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------
Title: Assistant Secretary
-----------------------------
USAA LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------------
Title: Authorized Signatory
-----------------------------
4/20/01
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SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Date Contracts Funded
Name of Separate Account Established by Separate Account
------------------------ ----------- -------------------
Separate Account of USAA 2/08/1994 Variable Annuity
Life Insurance Company
Life Insurance Separate Account 1/20/1998 Variable Universal Life
Of USAA Life Insurance Company
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SCHEDULE B
PORTFOLIOS
The following Portfolios of the Vanguard Variable Insurance Funds shall be
made available as investments underlying the Variable Insurance Products,
subject to the limitations set forth in Section 2.11(c) hereof:
Money Market Portfolio
High-Yield Bond Portfolio
Diversified Value Portfolio
Equity Index Portfolio
Mid-Cap Index Portfolio
REIT Index Portfolio
Small Company Growth Portfolio
International Portfolio
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