UNDERWRITING AGREEMENT
THIS UNDERWRITING AGREEMENT is made as of ___________________, 200__, by
and between USAA INVESTMENT MANAGEMENT COMPANY, a registered broker-dealer
organized as a corporation under the laws of the State of Delaware and having a
place of business in San Antonio, Texas ("IMCO"), and USAA LIFE INVESTMENT
TRUST, a Delaware business trust having a place of business in San Antonio,
Texas (the "Trust").
RECITALS
The Trust is an open-end management investment company registered under
the Investment Company Act of 1940 (the "1940 Act"), as amended, whose shares
are registered under the Securities Act of 1933 (the "1933 Act"), as amended,
and with shares offered in various investment funds ("Funds"); and
The Trust presently makes its shares available for purchase to the
Separate Account of USAA Life Insurance Company and the Life Insurance Separate
Account of USAA Life Insurance Company (the "Separate Accounts"), and may make
its shares available to any other separate accounts of USAA Life Insurance
Company ("USAA Life") or any of USAA Life's subsidiaries or affiliates, and to
separate accounts of non-affiliated life insurance companies (all such eligible
purchasers being referred to collectively as "Purchasers").
IMCO is registered as a broker-dealer under the Securities Exchange Act
of 1934, is a member of the National Association of Securities Dealers (the
"NASD"), is the investment adviser for the Trust, and has agreed to service as
principal underwriter for the Trust.
AGREEMENT
In consideration of the agreements contained herein, and for other good
and valuable consideration, receipt of which is hereby acknowledged, the Trust
and IMCO agree as follows:
1. APPOINTMENT OF UNDERWRITER
The Trust hereby appoints IMCO as principal underwriter and distributor
of the Trust to sell its shares to Purchasers, and IMCO hereby accepts such
appointment.
2. SALE AND REDEMPTION OF SHARES
(a) IMCO shall offer the Trust's shares only on the terms set forth in the
current prospectus, including the Statement of Additional Information
("SAI"). IMCO shall not be obligated to sell any specific number of
shares.
(b) In selling shares of the Trust, IMCO shall use its best efforts in all
respects to conform with the requirements of all federal and state
laws and regulations and the regulations of the NASD, relating to the
sale of such shares. Neither IMCO nor any other person is authorized
to give any information or to make any representations, other than
those contained in the registration statement or related prospectus of
the Trust and any sales literature or advertisements authorized by the
Trust.
(c) IMCO shall distribute, or shall arrange for others to distribute,
prospectuses for the Trust, as required by the Securities and Exchange
Commission ("SEC"); and shall comply in all respects with the
requirements of all federal and state laws and regulations and the
regulations of the NASD, relating to the sale of Trust shares.
(d) To the extent permitted by applicable laws and regulations, the Trust
reserves the right to suspend the redemption of shares at any time
pursuant to the conditions set forth in the prospectus. The Trust
shall give IMCO prompt notice of any such suspension and shall promptly
furnish such other information in connection with the sale and
redemption of Trust shares as IMCO reasonably requests.
(e) To the extent required by laws and regulations, IMCO shall cause any
sales literature, advertising, or other promotional materials used in
connection with its sales of Trust shares to be filed and, if
necessary, approved by the NASD, the SEC, or any other required
securities regulatory body.
3. INDEPENDENT CONTRACTOR
IMCO shall act as an independent contractor and, unless otherwise
expressly provided or authorized, shall have no authority to act for or
represent the Trust in any way or be deemed an employee of the Trust. IMCO
shall be responsible for its own conduct and the employment, control and conduct
of its agents and employees, assuming full responsibility for its agents and
employees and for injury to such agents or employees or to others through its
agents or employees under applicable statutes, and agrees to pay all employer
taxes thereunder as well as maintain insurance against public liability in such
an amount as the Trust and IMCO may, from time to time, agree.
4. ALLOCATION OF EXPENSES
(a) Trust. The Trust will pay (or will enter into arrangements providing for
others to pay) for all expenses of the offering of its shares incurred in
connection with:
i. The preparation, printing, and filing of any registration statement
and/or prospectus required to be filed under applicable federal or
state securities laws.
ii. The preparation, printing, and distribution of prospectuses and
periodic reports to existing shareholders and owners of variable
annuity contracts and variable life insurance policies issued by USAA
Life and funded by the Separate Accounts (collectively "USAA Life
Variable Products"), as may be required under applicable federal and
state laws and regulations.
iii. The preparation, printing, and distribution of any proxy statements,
notices, and reports, and the performance of any acts required to be
performed by the Trust under applicable federal and state securities
laws and regulations.
iv. The issuance of Trust shares, including all federal and state, issue
and/or transfer taxes, if any.
(b) IMCO. IMCO will pay (or will enter into arrangements providing for others
to pay) for all expenses of the offering of Trust shares incurred in
connection with:
i. The printing and distribution of the Trust's prospectuses that are to
be used in connection with the marketing of USAA Life Variable
Products.
ii. The preparation, printing and distribution of advertising and sales
literature for use in the offering of the Trust's shares, and the
printing and distribution of reports to shareholders used as sales
literature.
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iii. The qualification of IMCO as a distributor or broker or dealer under
any applicable federal or state securities laws or regulations.
(c) IMCO agrees that it shall receive no compensation for the performance of
its duties under this Agreement, except as otherwise specifically
provided herein. No commission or other fees shall be charged or paid to
any person or entity in connection with the sale of Trust shares under
this Agreement.
5. INDEMNIFICATION BY IMCO
IMCO shall indemnify and hold harmless the Trust and each of its Trustees
and officers (or former Trustees and officers), and each person, if any, who
controls the Trust within the meaning of Section 15 of the 1933 Act
("Indemnitees") against any loss, liability, claim, damage, or expense
(including reasonable cost of investigation and defense against the same and
any counsel fees reasonably incurred in connection therewith) incurred by any
Indemnitees under the 1933 Act or under common law or otherwise, which arise
out of or are based upon (1) any untrue or alleged untrue statements of a
material fact contained in information furnished to the Trust by IMCO for use
in the Trust's registration statement, prospectus, or annual or interim
reports, (2) any omission or alleged omission to state a material fact in
connection with such information furnished by IMCO to the Trust that is
required to be stated in any of such documents or necessary to make such
information not misleading, (3) any misrepresentation or omission or alleged
misrepresentation or omission to state a material fact on the part of IMCO or
any agent or employee of IMCO or any other person for whose acts IMCO is
responsible, unless such misrepresentation or omission or alleged
misrepresentation or omission was made in reliance on information furnished by
the Trust, or (4) the willful misconduct or failure to exercise reasonable care
and diligence on the part of IMCO or any agent or employee of IMCO or any other
person for whose acts IMCO is responsible with respect to services rendered
under this Agreement. This indemnity provision, however, shall not operate to
protect any Trustee or officer of the Trust from any liability to the Trust by
reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of his or her duties.
In case any action shall be brought against any Indemnitee, IMCO shall
not be liable under its indemnity agreement contained in this paragraph with
respect to any claim made against any Indemnitee, unless the Indemnitee shall
have notified IMCO 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 the Indemnitee (or after the Indemnitee shall have
received notice of such service on any designated agent), but failure to notify
IMCO of any such claim shall not relieve it from liability to the Indemnitees
against whom such action is brought otherwise than on account of this Section 6.
IMCO will be entitled to participate at its own expense in the defense, or, if
it so elects, to assume the defense of any suit brought to enforce any such
liability, but if IMCO elects to assume the defense, such defense shall be
conducted by counsel chosen by it and satisfactory to the Indemnitees which are
defendants in the suit. In the event IMCO elects to assume the defense of any
such suit and retain such counsel, the Indemnitees that are defendants in the
suit shall bear the fees and expenses of any additional counsel retained by
them, but, in case IMCO does not elect to assume the defense of ay such suit,
IMCO will reimburse the Indemnitees which are defendants in the suit for the
reasonable fees and expenses of any counsel retained by them. IMCO shall
promptly notify the Trust of the commencement of any litigation or proceedings
in connection with the issuance or sales of shares. The foregoing rights of
indemnification shall be in addition to any other rights to which the Trust or a
Trustee may be entitled as a matter of law.
6. INDEMNIFICATION BY TRUST
The Trust agrees to indemnify and hold harmless IMCO and each person who
has been, is, or may hereafter be, an officer, director, employee or agent of
IMCO against any loss, damage or expense reasonably incurred by any of them in
connection with any claim or in connection with any action, suit, or
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proceeding to which any of them may be a party, which arises out of or is
alleged to arise out of or is based upon any untrue or alleged untrue statement
of material fact, or the omission or alleged omission to state a material fact
necessary to make the statements therein not misleading, contained in the
Trust's registration statement or prospectus, or any amendment or supplement
thereto, unless such statement or omission was made in reliance upon written
information furnished by IMCO. The foregoing rights of indemnification shall be
in addition to any other rights to which IMCO may be entitled as a matter of
law.
7. DURATION AND TERMINATION OF AGREEMENT
(a) This Agreement shall become effective on the date set forth above and,
unless terminated, shall remain in full force and effect from year to
year thereafter, but only so long as such continuance is specifically
approved at least annually by (i) the Board of Trustees, or by a
majority of the outstanding voting securities of the Trust, cast in
person or by proxy; and (ii) a majority of those Trustees who are not
parties to this Agreement or interested persons of any such party cast
in person at a meeting called for the purpose of voting on such
approval.
(b) Notwithstanding the provisions of paragraph (a), the Board of Trustees
may, from time to time, establish a new effective date for the
continuance of this Agreement with respect to any current or additional
Fund, provided that such new effective date precedes the then current
termination date of the Agreement.
(c) This Agreement may be terminated at any time without payment of penalty,
by the Board of Trustees, or by IMCO on 60 days' written notice to the
other party.
8. AMENDMENT
This Agreement may be amended at any time by mutual agreement in writing
of the parties hereto, provided that any such amendment is approved by a
majority of the Trustees of the Trust who are not interested persons.
9. ASSIGNMENT
This Agreement shall automatically terminate in the event of its
assignment (as defined in section 2(a)(4) of the 0000 Xxx) by IMCO; provided,
however, that IMCO may employ such other person, persons, corporation, or
corporations, as it shall determine, in order to assist it in carrying out this
Agreement.
10. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the
state of Texas and the applicable provisions of the 1940 Act. To the extent the
applicable law of the state of Texas, or any of the provisions herein, conflict
with the applicable provisions of the 1940 Act, the latter shall control.
11. CONFIDENTIALITY
IMCO shall not disclose or use any records or information obtained
hereunder in any manner whatsoever except as expressly authorized hereunder, and
further, shall keep confidential any information obtained pursuant to this
Agreement with the Trust as set forth herein, and disclose such information only
if the Trust has authorized such disclosure, or if such disclosure is expressly
required by applicable federal or state regulatory authorities.
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12. PRIOR AGREEMENT SUPERSEDED
This Agreement supersedes any prior agreement relating to the subject
matter hereof between the parties.
13. ENTIRE AGREEMENT
This is the complete and entire Agreement as represented herein.
IN WITNESS WHEREOF, the parties execute this Agreement on the date above.
USAA INVESTMENT MANAGEMENT COMPANY USAA LIFE INVESTMENT TRUST
By: ______________________________ By: _________________________
Xxxxxxxxxxx X. Xxxxx Xxxxx X. Xxxxxxxxx
President President
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