Exhibit (h)(1)
FORM OF TRANSFER AGENCY AND DIVIDEND
DISBURSING AGENCY AGREEMENT
AGREEMENT made as of the ___ day of _________, 1999 by and
between TD WATERHOUSE TRUST, a Delaware business trust (the "Trust"), on its own
behalf and on behalf of its XX Xxxxxxxxxx Xxx 30 Fund (the "Fund"), and NATIONAL
INVESTOR SERVICES CORP., a Delaware corporation ("NISC").
WITNESSETH:
WHEREAS, the Trust is an open-end, management investment
company registered as such under the Investment Company Act of 1940, as amended,
currently comprised of one investment portfolio; and
WHEREAS, the Trust desires to appoint NISC to be the Transfer
Agent and Dividend Disbursing Agent for the Fund upon, and subject to, the terms
and provisions of this Agreement; and
WHEREAS, the NISC desires to accept such appointment upon, and
subject to, such terms and provisions.
NOW, THEREFORE, in consideration of the premises and mutual
covenants hereinafter contained, the Trust and NISC agree as follows:
1. Appointment of NISC as Transfer Agent and Dividend Disbursing Agent.
(a) The Trust hereby appoints NISC to act as Transfer Agent
and Dividend Disbursing Agent for the Fund upon, and subject to, the terms and
provisions of this Agreement.
(b) NISC hereby accepts the appointment as Transfer Agent and
Dividend Disbursing Agent for the Fund, and agrees to act as such upon, and
subject to, the terms and provisions of this Agreement.
2. Definitions. In this Agreement:
(1) The term "Act" means the Investment Company Act of 1940,
as amended, and any rule or regulation thereunder;
(2) The term "Account" means any account of a Shareholder, or,
if the shares are held in an account in the name of Waterhouse
Securities, Inc. or other broker-dealer for benefit of an
identified customer, such account, and includes any Plan
Account;
(3) The term "application" means an application made by a
Shareholder or prospective Shareholder respecting the opening
of an Account;
(4) The term "Instruction" means an instruction in writing
given on behalf of the Trust to NISC, and signed on behalf of
the Trust by the President, any Vice President, the Secretary
or the Treasurer of the Trust or other authorized person;
(5) The term "Plan Account" means an account opened by a
Shareholder or prospective Shareholder in respect of a "sweep
account" (in each case by whatever name referred to in the
Prospectus), and may also include an account relating to any
other plan if and when provision is made for such plan in the
Prospectus;
(6) The term "Prospectus" includes the Prospectus and the
Statement of Additional Information of the Trust as from time
to time in effect;
(7) The term "Shareholder" means a holder of record of Shares;
(8) The term "Shares" means shares of stock of the Fund.
3. Duties of NISC as Transfer Agent and Dividend Disbursing Agent.
(a) Subject to the other provisions of the Agreement, NISC
hereby agrees to perform the following functions as Transfer Agent and Dividend
Disbursing Agent for the Fund: (i) processing the issuance, transfer and
redemption of Shares, and recording the same in the appropriate Accounts; (ii)
opening, maintaining, servicing and closing Accounts; (iii) acting as agent for
the Shareholders and/or customers of Waterhouse Securities, Inc. or other
broker-dealer in connection with Plan Accounts, upon the terms and subject to
the conditions contained in the Prospectus and application relating to the
specific Plan Account; (iv) exchanging the investment of an investor into or
from the Shares of one or more other investment companies (or portfolios
thereof) if and to the extent permitted by the Prospectus at the direction of
such investor; (v) examining and approving legal transfers; (vi) replacing lost,
stolen or destroyed certificates, if any, representing Shares, in accordance
with, and subject to, procedures and conditions adopted by the Trust; (vii)
furnishing confirmations of purchases and sales relating to Shares as required
by applicable law; (viii) furnishing appropriate periodic and year end
statements relating to Accounts, together with additional enclosures, including
appropriate income tax information and income tax forms duly completed, as
required by applicable law; (ix) mailing annual, semi-annual and quarterly
reports and dividend notices prepared by or on behalf of the Fund, and mailing
new Prospectuses upon their issue to Shareholders as required by applicable law;
(x) furnishing such periodic statements of transactions effected by NISC,
reconciliations, balances and summaries as the Fund may reasonably request; (xi)
withholding taxes on non-resident alien Accounts, and preparing and filing U.S.
Treasury Department Form 1099 and other appropriate forms as required by
applicable law with respect to dividends and distributions; and (xii) processing
dividend and distribution payments, including reinvesting dividends for full and
fractional shares and disbursing cash dividends, as applicable.
(b) NISC agrees to act as proxy agent in connection with the
holding of annual, if any, and special meetings of Shareholders, mailing such
notices, proxies and proxy statements in connection with the holding of such
meetings as may be required by applicable law, receiving and tabulating votes
cast by proxy and communicating to the Trust the results of such tabulation
accompanied by appropriate certificates, and preparing and furnishing to the
Trust certified lists of Shareholders (of the Fund or one or more of its
investment portfolios, as appropriate) as of such date, in such form and
containing such information as may be required by the Trust.
(c) NISC agrees to deal with, and answer in a timely manner,
all correspondence and inquires relating to the functions of NISC under this
Agreement with respect to Accounts.
(d) NISC agrees to furnish to the Trust or its designated
agent such information at such intervals as is necessary for the Trust to comply
with the registration and/or the reporting requirements (including applicable
escheat laws) of the Securities and Exchange Commission, state securities or
Blue Sky authorities or other governmental authorities.
(e) NISC agrees to provide to the Trust such information as
may reasonably be required to enable the Trust to reconcile the number of
outstanding Shares of the Fund between the NISC's records and the account books
of the Trust.
(f) Notwithstanding anything in the foregoing provisions of
this section 3, NISC agrees to perform its functions thereunder subject to such
modification (whether in respect of particular cases or in any particular class
of cases) as may from time to time be contained in an Instruction.
(g) In providing for any or all of the services indicated in
this section 3, and in satisfaction of its obligations to provide such services,
NISC may enter into agreements with one or more other persons to provide such
services to the Fund, provided that any such agreement shall have been approved
by the Board of Trustees of the Trust, provided further that NISC shall be as
fully responsible to the Trust for the acts and omissions of such persons as it
would be for its own acts or omissions hereunder.
4. Compensation. For the services provided to the Trust by NISC
pursuant to this Agreement, the Fund shall pay NISC on the first business day of
each calendar month a fee for the previous month at an annual rate equal to .05
of 1% of the Fund's average daily net assets. The value of the Fund's net assets
shall be computed at the times and in the manner specified in the Trust's
registration statement on Form N-1A, as amended from time to time (the
"Registration Statement"). Compensation by the Fund of NISC shall commence on
the date of the first receipt by the Fund of the proceeds of the sale of its
Shares as described in the Registration Statement, and the fee for the period
from the date the Fund shall first receive the proceeds of the sale of its
Shares as aforesaid to the end of the month during which such proceeds are so
received, shall be pro-rated according to the proportion that such period bears
to the full monthly period. Upon termination of this Agreement before the end of
a month, the fee for such part of that month shall be pro-
rated according to the proportion that such period bears to the full monthly
period and shall be payable within seven (7) days after the date of termination
of this Agreement.
5. Maintenance of Records, Right of Inspection. In connection with the
performance of its duties hereunder, NISC shall maintain such books and records
relating to transactions effected by NISC as are required by the Act, or by any
other applicable provision of law, rule or regulation, to be maintained by the
Trust or its transfer agent with respect to transactions. NISC shall preserve,
or cause to be preserved, any such books and records for such periods as may be
required by any such law, rule or regulation and as may be agreed upon from time
to time between NISC and the Trust. In addition, NISC agrees to maintain and
preserve master files and historical computer tapes on a daily basis in multiple
separate locations a sufficient distance apart to insure preservation of at
least one copy of such information. NISC agrees that it will, in a timely
manner, make available to and permit, any officer, accountant, attorney or
authorized agent of the Trust to examine and make transcripts and copies
(including photocopies and computer or other electronic information storage
media and print-outs) of any and all of the books and records which are
maintained pursuant to this Agreement.
6. Confidential Relationship. NISC agrees that it will, on behalf of
itself and its officers and employees, treat all transactions contemplated by
this Agreement, and all information germane thereto, as confidential and not to
be disclosed to any person (other than the Shareholder concerned, or the Trust,
or as may be disclosed in the examination of any books or records by any person
lawfully entitled to examine the same) except as may be authorized by the Trust
by way of an Instruction.
7. Indemnification.
(a) NISC shall not be liable to the Trust or the Fund for any
error of judgment or mistake of law or for any loss arising out of any act or
omission by NISC in the performance of its duties hereunder. Nothing herein
contained shall be construed to protect NISC against any liability to the Trust,
the Fund, Shareholders or any investment adviser to the Trust to which NISC
shall otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of its duties, or by reckless disregard of its
obligations and duties hereunder.
(b) The Trust, on behalf of the Fund, agrees to indemnify and
hold harmless NISC and any sub-agent from and against all charges, claims,
expenses (including legal fees) and liabilities reasonably incurred by NISC and
each sub-agent in connection with the performance of its duties hereunder,
except such as may arise from NISC's or sub-agent's willful misfeasance, bad
faith, gross negligence in the performance of its duties or by reckless
disregard of its obligations and duties hereunder. Subject to the requirements
of the Act, such expenses shall be paid by the Trust in advance of the final
disposition of any matter upon invoice by NISC or a sub-agent and receipt by the
Trust of an undertaking from NISC or such
sub-agent to repay such amounts if it shall ultimately be established that NISC
is not entitled to payment of such expenses hereunder.
(c) As used in this section 7, the term "NISC" and "sub-agent"
shall include any affiliates of NISC and each sub-agent performing services for
the Trust contemplated hereby and directors, officers, agents and employees of
NISC, each such sub-agent and such affiliates.
8. Regarding NISC.
(a) NISC warrants and represents that its officers and
supervisory personnel or agents (including any sub-transfer agents or
sub-dividend disbursing agents) charged with carrying out its functions as
Transfer Agent and Dividend Disbursing Agent for the Trust possess the special
skill and technical knowledge appropriate for that purpose. NISC shall at all
times exercise due care and diligence in the performance of its functions as
Transfer Agent and Dividend Disbursing Agent for the Trust. NISC agrees that, in
determining whether it has exercised due care and diligence, its conduct shall
be measured by the standard applicable to persons possessing such special skill
and technical knowledge.
(b) NISC warrants and represents that it is duly authorized
and permitted to act as Transfer Agent and Dividend Disbursing Agent under all
applicable laws and that it will immediately notify the Trust of any revocation
of such authority or permission or of the commencement of any proceeding or
other action which may lead to such revocation.
9. Termination.
(a) This Agreement shall become effective as of the date first
above written and shall thereafter continue from year to year. This Agreement
may be terminated by the Trust or NISC (without penalty to the Trust or NISC)
provided that the terminating party gives the other party written notice of such
termination at least sixty (60) days in advance, except that the Trust may
terminate this Agreement immediately upon written notice to NISC if the
authority or permission of NISC to act as Transfer Agent and Dividend Disbursing
Agent has been revoked of if any proceeding or other action which the Trust
reasonably believes will lead to such revocation has been commenced.
(b) Upon termination of this Agreement, NISC shall deliver all
unissued and canceled stock certificates representing Shares, if any, remaining
in its possession, and all Shareholder records, books, stock ledgers,
instruments and other documents (including computer or other electronically
stored information) made or accumulated in the performance of its duties as
Transfer Agent and Dividend Disbursing Agent for the Trust along with a
certified locator document clearly indicating the complete contents therein, to
such successor as may be specified in a notice to termination or Instruction.
The Trust assumes all responsibility for failure thereafter to produce any
paper, record or document so delivered and identified in the locator document,
if and when required to be produced.
10. Amendment. Except to the extent that the performance by NISC of its
functions under this Agreement may from time to time be modified by an
Instruction, this Agreement may be amended or modified by the parties hereto
only if such amendment is specifically approved by the Board of Trustees of the
Trust, including a majority of the Trustees who are not " interested persons" of
the Trust within the meaning of the Act and who have no direct or indirect
interest in this Agreement, and such amendment is set forth in a written
instrument executed by each of the parties hereto.
11. Governing Law. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of the State of New York as at the
time in effect and the applicable provisions of the Act. To the extent that the
applicable law of the State of New York, or any of the provisions herein,
conflict with the applicable provisions of the Act, the latter shall control.
12. Counterparts. This Agreement may be executed by the parties hereto
in counterparts and if executed in more than one counterpart the separate
instruments shall constitute one agreement.
13. Notices. All notices or other communications hereunder to either
party shall be in writing and shall be deemed to be received on the earlier of
the date actually received or on the fourth day after the postmark if such
notice is mailed first class postage prepaid. Notice shall be addressed: (a) if
to NISC, to: President, National Investor Services Corp., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000; or (b) if to the Trust, to: President, TD Waterhouse
Trust, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other address as
either party may designate by written notice to the other. Notice also shall be
deemed sufficient if given by telex, telecopier, telegram or similar means of
same day delivery (with a confirming copy by mail as provided herein).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective duly authorized officers as of the day and year above
written.
TD WATERHOUSE TRUST
By: _________________________________
NATIONAL INVESTOR SERVICES CORP.
By: __________________________________
