EXHIBIT (6)(d)
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Form of Retail Services Agreement among Transamerica
Investors, Inc., Transamerica Occidental Life Insurance
Company and Xxxxxxx Xxxxxx & Co., Inc.
XXXXXXX XXXXXX
MUTUAL FUND MARKETPLACE(R)
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RETAIL
SERVICES AGREEMENT
This Agreement is made as of _______________ 199___ between Xxxxxxx
Xxxxxx & Co., Inc. ("Schwab"), a California corporation, each registered
investment company ("Fund Company") executing this Agreement, on its own behalf
and on behalf of each of the series or classes of shares, if any, listed on
Schedule I, as amended from time to time (such series or classes being referred
to as the "Fund(s)"), and Fund Affiliate (defined below) that has executed this
Agreement. Fund Company and Fund Affiliate are collectively referred to herein
as "Fund Parties." In the event that there are no series or classes of shares
listed on Schedule I, the term "Funds(s)" shall mean "Fund Company".
WHEREAS Fund Affiliate is either (i) an investment adviser to or
administrator for the Funds or (ii) the principal underwriter or distributor for
the Funds.
WHEREAS Fund Parties wish to have Schwab perform certain recordkeeping,
shareholder communication, and other services for each Fund; and
WHEREAS Schwab is willing to perform such services on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
set forth below, the parties agree as follows:
1. Services
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a. During the term of this Agreement, Schwab shall perform the
services set forth on Exhibit A hereto, as such exhibit may be amended from time
to time by mutual consent of the parties (the"Services").
b. In processing purchase, redemption, transfer and exchange
orders placed by Schwab on behalf of its customers, and in order to facilitate
Schwabs's performance of Services, the parties agree that the Operating
Agreement, dated as of _______________ 199___ between Schwab and Fund Company,
as amended from time to time ("Operating Agreement"), is incorporated herein by
this reference. All terms and conditions of the Operating Agreement shall be
binding as between Schwab and Fund Parties, and the references to Fund Company
therein shall be as deemed to mean Fund Parties for the purposes of this
Agreement. In the event of any inconsistency between the Operating Agreement and
this Agreement, this Agreement shall control.
2. Fees
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For the Services, Schwab shall receive a fee (the "Fee") which
shall be calculated and paid in accordance with Exhibit B hereto. Schedule II
reflects the amount of the Fee that each Fund Party has agreed, as between them,
to pay. Should Exhibit A be amended to revise the Services, the parties shall
also amend Exhibit B and Schedule II, if necessary, in order to reflect any
changes in the Fee.
3. Transaction Charges
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Schwab shall not, during the term of this Agreement, assess against
or collect from its customers any transaction fee upon the purchase or
redemption of any Fund's shares that are considered in calculating the Fee. The
parties acknowledge and agree that Schwab may collect such transaction fees from
certain customers (including "Active Traders," as Schwab may define that term)
for certain special trading services and from other customers upon such other
customers' redemption of certain shares. The value of shares as to which such
transaction fees are charged will not be included in the calculation of the Fee.
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4. Indemnification
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x. Xxxxxx shall indemnify and hold harmless Fund Parties and
their directors, officers, employees, and agents ("Indemnified Parties") from
and against any and all losses, claims, liabilities and expenses (including
reasonable attorney's fees ) ("Losses") incurred by any of them arising out of
(i) Xxxxxx'x dissemination of information regarding Fund Parties or a Fund that
is materially incorrect and that was not provided to Schwab, or approved, by a
Fund Party, its affiliated persons ("Affiliates") as defined under the
Investment Company Act of 1940, as amended (the "1940 Act"), or agents or (ii)
Xxxxxx'x willful misconduct or negligence in the performance of, or failure to
perform, its obligations under this Agreement, except to the extent such Losses
result from the negligence, willful misconduct or breach of this Agreement by an
Indemnified Party.
b. In any event, no party shall be liable for any special,
consequential or incidental damages.
5. Role and Relationship of Schwab
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The parties acknowledge and agree that the Services under this
Agreement are recordkeeping, shareholder communication and related services only
and are not the services of an underwriter or a principal underwriter of any
Fund within the meaning of the Securities Act of 1933, as amended, or the 1940
Act. This Agreement does not xxxxx Xxxxxx any right to purchase shares from any
Fund (although it does not preclude Schwab from purchasing any such shares), nor
does it constitute Schwab an agent of Fund Parties or any Fund for purposes of
selling shares of any Fund to any dealer or the public. To the extent Schwab is
involved in the purchase of shares of any Fund by Xxxxxx'x customers, such
involvement will be as agent of such customer only.
6. Information to be Provided
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Fund Parties shall provide to Schwab prior to the effectiveness of
this Agreement or as soon thereafter as practicable:
a. Certified resolutions of the board of directors of each Fund
Party authorizing the Fund Party to enter into this Agreement and indicating the
officers authorized to execute this Agreement on behalf of the Fund Party; and
b. Two (2) copies of the then-current prospectus and statement of
additional information of each Fund. Fund Party shall provide Schwab with
written copies of any amendments to or changes in the Fund's prospectus or
statement of additional information as soon as practicable after such amendments
or changes become available.
7. Notices
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All notices required by this Agreement (excluding the Operating
Agreement) shall be in writing and delivered personally or sent by first class
mail. Such notices will be deemed to have been received as of the earlier of
actual physical receipt or three (3) days after deposit, first class postage
prepaid, in the United States mail. All such notices shall be made:
if to Schwab, to: Xxxxxxx Xxxxxx & Co., Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx XxXxxxxxx
Senior Vice President/Mutual
Funds
with a copy to: General Counsel, at the same address;
if to Fund Party, to the address given below in the signature
block.
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8. Nonexclusivity
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Each Party acknowledges that the other may enter into agreements
similar to this Agreement with other parties for the performance of services
similar to those to be provided under this Agreement, unless otherwise agreed to
in writing by the parties.
9. Assignability
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This Agreement is not assignable by any party without the other
parties' prior written consents and any attempted assignment in contravention
hereof shall be null and void; provided, however, that Schwab may, without the
consent of Fund Parties, assign its rights and obligations under this Agreement
to any Affiliate.
10. Exhibits and Schedules
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All Exhibits and Schedules attached to this Agreement, as they may
be amended from time to time, are by this reference incorporated into and made a
part of this Agreement.
11. Entire Agreement: Amendment
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This Agreement (including the Exhibits and Schedules hereto),
together with the Operating Agreement, constitute the entire agreement between
the parties as to the subject matter hereof and supersede any and all
agreements, representations and warranties, written or oral, regarding such
subject matter made prior to the time at which this Agreement has been executed
and delivered by Schwab and Fund Parties. This Agreement and the Exhibits and
Schedules hereto may be amended only by a writing executed by each party hereto
that is to be bound by such amendment.
12. Governing Law
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This Agreement will be governed by and interpreted under the laws
of the State of California as applied to contracts entered into and to be
performed entirely within that state.
13. Counterparts
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This Agreement may be executed in one or more counterparts, each of
which will be deemed an original, but all of which together shall constitute one
and the same instrument.
14. Effectiveness of Agreement: Termination
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a. This Agreement will become effective as to a Fund as of the
later of (i) the date set forth on Schedule I opposite the name of the Fund or
(ii) such later date as Schwab may, in its discretion, designate.
b. This Agreement may be terminated as to a Fund by any party
(i) upon ninety (90) days' written notice to the other parties or (ii) upon such
shorter notice as is required by law, order, or instruction by a court of
competent jurisdiction or a regulatory body or self-regulatory organization with
jurisdiction over the terminating party or (iii) automatically, effective on the
day following the termination of any plan of distribution ("Rule 12b-1 Plan")
adopted and maintained pursuant to Rule 12b-1 under the 1940 Act by any Fund
that has a Rule 12b-1 Plan in effect as of the effective date of this Agreement,
provided that a portion of the Fee is paid pursuant to the Rule 12b-1 Plan.
c. After the date of termination as to a Fund, Fund Parties
will not be obligated to pay the Fee with respect to any shares of the Fund that
are first held in Schwab customer accounts after the date of such termination.
However, notwithstanding any such termination, Fund Parties will remain
obligated to pay Schwab the Fee as to each share of the Fund that was considered
in the calculation of the Fee as of the date of termination (a "Pre-Termination
Share"), for so long as such Pre-Termination Share is held in any Schwab
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brokerage account and Schwab continues to perform substantially all of the
Services as to such Pre-Termination Share. Further, for so long as Schwab
continues to perform the Services as to any Pre-Termination Shares, this
Agreement will otherwise remain in full force and effect as to such
Pre-Termination Shares. Fund Parties shall reimburse Schwab promptly for any
reasonable expenses Schwab incurs in effecting any termination of this
Agreement, including delivery to a Fund Party of any records, instruments, or
documents reasonably requested by the Fund Party.
IN WITNESS WHEREOF, the parties have executed this Agreement by a duly
authorized representative of the parties hereto.
Xxxxxxx Xxxxxx & Co., Inc.
By: ___________________________________
Xxxx XxXxxxxxx
Senior Vice President/Mutual Funds
Date: ________________________________
_______________________________________ ____________________________________
Name of Fund Affiliate Name of Fund Company
By:____________________________________ By:_________________________________
Name:__________________________________ Name:_______________________________
Title:_________________________________ Title:______________________________
Address:_______________________________ Address:____________________________
_______________________________________ ____________________________________
Attn: ________________________________ Attn: _____________________________
Date: ________________________________ Date: _____________________________
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EXHIBIT A
SERVICES
1. Record Maintenance
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Schwab shall maintain the following records with respect to a Fund
for each customer who holds Fund shares in a Schwab brokerage account:
a. Number of shares;
b. Date, price and amount of purchases and redemptions (including
dividend reinvestments) and dates and amounts of dividends paid for at least the
current year to date;
c. Name and address of the customer, including zip codes and
social security numbers or taxpayers indentification numbers;
d. Records of distributions and dividend payments;
e. Any transfers of shares; and
f. Overall control records.
2. Shareholder Communications
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Schwab shall:
a. Provide to a shareholder mailing agent employed by each Fund
for the purpose of mailing certain Fund-related materials the names and
addresses of all Schwab customers who hold shares of such Fund in their Schwab
brokerage accounts. Such shareholder mailing agent shall be a person or entity
engaged by such Fund in accordance with the Operating Agreement and the
Fund-related materials to be sent by such agent shall consist of updated
prospectuses and any supplements and amendments thereto, annual and other
periodic reports, proxy or information statements and other appropriate
shareholder communications.
b. Mail current Fund prospectuses and statements of additional
information and annual and other periodic reports upon customer request and, as
applicable, with confirmation statements;
c. Mail statements to customers on a monthly basis (or, as to
accounts in which there has been no activity in a particular month, no less
frequently than quarterly) showing, among other things, the number of shares of
each Fund owned by such customer and the net asset value of such Fund as of a
recent date;
d. Produce and mail to customers confirmation statements
reflecting purchases and redemptions of shares of each Fund in Schwab brokerage
accounts;
e. Respond to customer inquiries regarding, among other things,
share prices, account balances, dividend amounts and dividend payment dates; and
f. With respect to Fund shares purchased by customers after the
effective date of this Agreement, provide average cost basis reporting to the
customers to assist them in preparation of income tax returns.
3. Transactional Services
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Schwab shall communicate, as to shares of each Fund, purchase,
redemption and exchange orders reflecting the orders it receives from its
customers. Schwab shall also communicate, as to shares of each Fund, mergers,
splits and other reorganization activities.
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4. Tax Information Returns and Reports
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Schwab shall prepare and file with the appropriate governmental
agencies, such information, returns and reports as are required to be so filed
for reporting (i) dividends and other distributions made, (ii) amounts withheld
on dividends and other distributions and payments under applicable federal and
state laws, rules and regulations, and (iii) gross proceeds of sales
transactions as required.
5. Fund Communications
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Schwab shall, on a daily basis and for each Fund, report the number
of shares on which the Fee is to be paid pursuant to this Agreement and the
number of shares on which no such Fee is to be paid. Schwab shall also provide
each Fund with monthly summaries of reports. Such summaries shall be expressed
in both shares and dollar amounts.
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EXHIBIT B
CALCULATION OF FEE
1. The Fee shall be calculated by multiplying the Daily Value of
Qualifying Shares (defined below) times the appropriate Fee Rate (indicated
below). The Fee shall be computed daily and paid monthly in arrears.
2. The Daily Value of Qualifying Shares is the aggregate daily value of
all shares of the Fund held in Schwab brokerage accounts, subject to the
following exclusions ("Qualifying Shares"). There shall be excluded from the
shares (i) shares as to which a brokerage customer paid Schwab a transaction fee
upon the purchase of such shares, (ii) shares held in a Schwab brokerage account
prior to the effective date of this Agreement as to the Fund and (iii) shares
first held in a Schwab brokerage account after the termination of this Agreement
as to the Fund.
3. The Fee Rate is determined based on the aggregate value of the
Qualifying Shares of all Funds listed on all Schedule I's, as amended from time
to time, as of the prior review date. The review dates are December 31 and June
30. The Fee Rate is effective from the next business day following the review
date up to and including the next review date. The Fee Rates are as follows:
Aggregate Value of
Qualifying Shares Fee Rate
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Up to and including $500 million 35 basis points per annum
Over $500 million and up to and 30 basis points per annum
including $1.5 billion
Over $1.5 billion 25 basis points per annum
The rate scale is not intended to produce a "blended rate". Rather, once a
threshold is reached, the rate applicable to the total amount of assets will be
used for all assets. Thus, if the aggregate value of Qualifying Shares of all
such Funds is $501 million as of a review date, the Fee Rate will be 30 basis
points (to be applied to the Daily Value of Qualifying Shares) until the next
review date.
4. For purposes of this Exhibit, the daily value of the shares of each
Fund will be the net asset value reported by such Fund to the National
Association of Securities Dealers, Inc. Automated Quotation System. No
adjustments will be made to the net asset values to correct errors in the net
asset values so reported for any day unless such error is corrected and the
corrected net asset value per share is reported to Schwab before 5 o'clock,
p.m., San Francisco time, on the first business day after the day to which the
error relates.
5. At the request of Fund Parties, Schwab shall provide, on each
business day, a statement detailing the calculation for each Fund, the aggregate
value of the Qualifying Shares of each Fund and the amount of the Fee for each
Fund. As soon as practicable after the end of the month, Schwab shall also
provide to Fund Parties an invoice for the amount of the Fee due for each Fund.
In the calculation of such Fee, Xxxxxx'x records shall govern unless an error
can be shown in the number of shares used in such calculation.
6. Fund Parties shall pay Schwab the Fee within thirty (30) days after
Fund Parties' receipt of such statement. Such payment shall be by wire transfer,
unless the amount thereof is less than $250. Such wire transfers shall be
separate from wire transfers of redemption proceeds or distributions under the
Operating Agreement. Amounts less than $250 may, at Fund Parties' discretion, be
paid by check.
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B
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SCHEDULE I
Fund Effective Date
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* Indicates that Fund is a "no load" or "no sales charge" Fund as defined in
Section 26 of the NASD's Rules of Fair Practice.
_____________________________________
Name of Fund Company
By: _________________________________
Name:________________________________
Title: ____________________________
Date: ______________________________
Acknowledged by
_________________________________ Accepted by Xxxxxxx Xxxxxx & Co. Inc.
Name of Fund Affiliate
By: _____________________________ By: _______________________________
Xxxx XxXxxxxxx
Name: ___________________________ Senior Vice President/Mutual Funds
Title: __________________________ Date: _____________________________
Date: ___________________________
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SCHEDULE II
Aggregate Value of Qualifying Shares
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Up to and including Over$500M and Above
$500Million up to $1.5Billion $1.5Billion
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Fund Company
__________________ _______% _______% _______%
(name)
Fund Affiliate
__________________ _______% _______% _______%
(name)
Fee Rate 0.35% 0.30% 0.25%
Percentage Per Annum of
Average Daily Value of
Fund Shares
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