EXHIBIT (h)(6)
STATE REGISTRATION SERVICES AGREEMENT
THIS AGREEMENT is made as of the 5th day of November, 1999 by and
between TD Waterhouse Trust (the "Trust"), and Automated Business Development
Corporation ("ABD"), a Massachusetts corporation on behalf of ClearSky
("ClearSky"), a division of ABD.
W I T N E S S E T H:
WHEREAS, the Trust is an investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), and,
WHEREAS, the Trust wishes to retain ClearSky to provide certain
administrative services, and ClearSky is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment The Trust hereby appoints ClearSky to provide certain
administration services for the period and on the terms set forth in this
Agreement. ClearSky accepts such appointment and agrees to furnish the services
herein set forth in return for the compensation as provided in Paragraph 4 of
this Agreement. In the event that the Trust decides to add one or more new
portfolio series or class, with respect to which it wishes to retain ClearSky to
provide services hereunder, the Trust or its Administrator, TD Waterhouse
Investor Services, Inc. ("TD Waterhouse") on its behalf, shall notify ClearSky
in writing. If ClearSky is willing to render such services, it shall notify the
Trust in writing of any terms and compensation that differ from the provisions
of this Agreement, and upon acceptance by the Trust, such portfolio or class
shall become a Trust hereunder.
2. Delivery of Documents. The Trust or TD Waterhouse will furnish
ClearSky with copies following:
(a) A listing of all jurisdictions in which the Trust is lawfully
available for sale as of the date of this Agreement and in which the Trust
desires ClearSky to effect such notice filing;
(b) The Trust's most recent Post-Effective Amendment under the
Securities Act of 1933 and under the 1940 Act as filed with the Securities and
Exchange Commission (the "SEC") and all amendments thereto;
(c) The Trust's most recent prospectus and statement of additional
information and all amendments and supplements thereto (the "Prospectus"); and
(d) The Trust's most recent annual and semi-annual reports;
3. Services and Duties. Subject to the supervision and control of the
Trust, ClearSky undertakes to perform the following specific services:
(a) Effecting and maintaining, as the case may be, the qualification of
shares of the Trust for sale under the securities laws of the jurisdictions
indicated for the Trust on the list furnished to ClearSky pursuant to Paragraph
2(e) of this Agreement;
(b) Filing with each appropriate jurisdiction, as required, the
appropriate materials relating to the Trust, such filings to be made promptly
after receiving such materials from the Trust: Post Effective Amendments to the
Trust's Registration Statement; definitive copies of the Trust's Prospectus and
Statement of Additional Information and any Supplements thereto; Annual and
Semi-Annual Reports; and Notices of Special Meetings of Shareholders and related
Proxy materials which propose the merger, reorganization or liquidation of the
Trust;
(c) Conveying to the Trust or TD Waterhouse any comments received on
such filings and, if desired by the Trust, responding to such comments in such
manner as authorized by the Trust or TD Waterhouse; and
(d) In connection with the foregoing, receiving limited power of
attorney on behalf of the Trust to sign all Blue Sky filings and other related
documents.
Subject to payment to ClearSky in advance, ClearSky will remit to the
respective jurisdictions of notice filing fees for the shares of the Trust, and
any fees for qualifying or continuing the qualification of the Trust. The Trust
will, from time to time as specifically agreed between the parties, wire
transfer funds to ClearSky for the payment of said fees payable pursuant to this
provision promptly upon request by ClearSky. ClearSky will request the funds
necessary for the payment of fees in advance of the date the fees become due.
Upon receipt of the funds by ClearSky, it will issue checks for the payment of
fees.
In performing its duties under this Agreement, ClearSky will act in
accordance with the instructions and directions of the Trust.
The Trust or TD Waterhouse will provide Clear Sky with the appropriate
number of copies of each document which must be filed pursuant to this
provision.
4. Compensation. For the services provided by ClearSky under this
Agreement, the Trust will pay to ClearSky a monthly fee based upon the number of
state securities notice filings. The fee shall be based upon the rate of $125.00
per state securities notice filings per year and billed monthly in arrears. When
the number of state securities notice filings ("permits") reaches 300, the fee
will be based upon the rate of $100.00 per state securities notice filings per
year and billed monthly in arrears. There will be no retroactive credit for
permits which were previously maintained at $125.00.
5. Limitations of Liability and Indemnification. ClearSky shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Trust in connection with the matters to which this Agreement relates, so
long as it acts in good faith and with due diligence and is not negligent or
guilty of any willful misconduct. Without in any way limiting the foregoing,
ClearSky shall have no liability for failing to file on a timely basis any
material to be provided by the Trust or TD Waterhouse that it has not received
on a timely basis from the Trust or TD Waterhouse; ClearSky shall have no
responsibility to review the accuracy or adequacy of materials it receives from
the Trust or TD Waterhouse for filing or bear any liability arising out of the
timely filing of such materials.
The Trust agrees and acknowledges that ClearSky has not prior to the
date hereof assumed, and will not assume, any obligations or liabilities arising
out of the conduct of the Trust prior to the date hereof of those duties which
ClearSky has agreed to perform pursuant to this Agreement. The Trust further
agrees to indemnify ClearSky against any losses, claims, damages or liabilities
to which ClearSky may become subject in connection with the conduct by the Trust
of such duties prior to the date hereof.
The Trust represents and warrants to ClearSky that as of the date
hereof each it is duly registered and lawfully eligible for sale in each
jurisdiction indicated on the list furnished to ClearSky pursuant to Paragraph
2(e) of this Agreement.
6. Service to Other Companies or Accounts. The Trust understands that
the persons employed by ClearSky to assist in the performance of ClearSky's
duties hereunder will not devote their full time to such service and nothing
contained herein shall be deemed to limit or restrict the right of ClearSky or
any affiliate of ClearSky to engage in and devote time and attention to other
businesses or to render services of whatever kind or nature.
7. Notices. Any notice or other instrument or materials authorized or
required by this Agreement to be given in writing to the Trust or to ClearSky
shall be sufficiently given if addressed to such party and received by it at its
office set forth below or at such other place as it may from time to time
designate in writing.
To the Trust:
TD Waterhouse Trust
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
To Clear Sky:
Clear Sky Corporation
The Schrafft Center Annex
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx
8. Files. All files maintained by ClearSky with respect to the Trust
shall be the property of the Trust and shall be returned to the Trust at the
termination of this Agreement or as mutually agreeable to ClearSky and the
Trust.
9. Duration and Termination. This Agreement shall continue thereafter
until termination by the Trust or Clear Sky on 60 days written notice.
10. Conversion. There will be no charge for system conversion provided
the Trust allow ClearSky to administrate complete Blue Sky filing services for a
period of at least six months. In the event the Trust terminates this Agreement
prior to the six month obligation, a one time conversion fee equivalent to
$10/permit shall be applied.
11. Amendment to this Agreement. No provision of this Agreement may be
changed, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, discharge or
termination is sought.
12. Governing Law. This Agreement shall be governed by the laws of the
State of New York.
13. Confidentiality. ClearSky agrees to maintain all information about
the Trust that ClearSky acquires pursuant to this Agreement in confidence, and
ClearSky agrees not to use, or permit the use of, any such information for any
purpose except that set forth herein, or to disclose any such information to any
person, without the prior written consent of the Trust or TD Waterhouse.
14. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their constructions or effect. 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. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the date and year first
above written.
Attest: TD Waterhouse Trust
/s/ Xxxxx Xxxxxxx-Xxxx /s/ Xxxxxx X. Rio
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Attest: Automated Business
Development Corporation
/s/ Cameron Hemmervinger /s/ Xxxxxxxxx X. Xxxxxxx
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