EXHIBIT (h)(3)(a)
ADMINISTRATION AGREEMENT
AGREEMENT made as of the 5th day of November, 1999 by, between and
among TD WATERHOUSE ASSET MANAGEMENT, INC. (the "Investment Manager"), TD
WATERHOUSE INVESTOR SERVICES, INC., a Delaware corporation (the
"Administrator"), and TD WATERHOUSE TRUST, a Delaware business trust (the
"Trust").
WITNESSETH:
WHEREAS, the Investment Manager, a registered investment adviser under
the Investment Advisers Act of 1940, as amended, is obligated to provide certain
administrative services with respect to XX Xxxxxxxxxx Xxx 30 Fund (the "Fund"),
a series of the Trust, pursuant to an Investment Management Agreement with the
Trust;
WHEREAS, the Investment Manager desires to retain the Administrator to
render or otherwise provide for administrative services to the Fund in the
manner and on the terms and conditions hereafter set forth; and
WHEREAS, the Administrator desires to be so retained on said terms and
conditions.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the Trust, the Administrator and the Trust, on
behalf of the Fund agree as follows:
1. Duties of the Administrator.
(a) The Investment Manager hereby retains the Administrator to act as
administrator of the Trust and its Fund (each reference herein to the Trust
shall also be understood to refer to the Fund, as appropriate), subject to the
oversight of the Investment Manager and the supervision and direction of the
Board of Trustees of the Trust, as hereinafter set forth. The Administrator
shall perform or arrange for the performance of the following administrative and
clerical services with respect to the Trust: (i) maintain and preserve the books
and records, including financial and corporate records, of the Trust as required
by law or otherwise for the proper operation of the Trust; (ii) prepare and,
subject to approval by the Trust, file registration statements, notices, reports
and other documents required by U.S. Federal, state and other applicable laws
and regulations (other than state "blue sky" laws), including proxy materials
and periodic reports to Trust shareholders, oversee the preparation and filing
of registration statements, notices, reports and other documents required by
state "blue sky" laws, and oversee the monitoring of sales of shares of the
Trust for compliance with state securities laws; (iii) calculate and publish, or
arrange for the calculation and publication of, the net asset value of the
Trust's shares; (iv) calculate, or arrange for the calculation of, dividends and
distributions and performance data, and prepare other financial information
regarding the Trust; (v) oversee and assist in the coordination of, and, as the
Board may reasonably request or deem appropriate, make reports and
recommendations to the Board on, the performance of administrative and
professional services rendered to the Trust by others, including the custodian,
registrar, transfer agent and dividend disbursing agent, shareholder servicing
agents, accountants, attorneys, underwriters, brokers and dealers, corporate
fiduciaries, insurers, banks and such other persons in any such other capacity
deemed to be necessary or desirable; (vi) furnish secretarial services to the
Trust, including, without limitation, preparation of materials necessary in
connection with meetings of the Trust's Board of Trustees, including minutes,
notices of meetings, agendas and other Board materials; (vii) provide the Trust
with the services of an adequate number of persons competent to perform the
administrative and clerical functions described herein; (viii) provide the Trust
with administrative office and data processing facilities; (ix) arrange for
payment of the Trust's expenses; (x) provide routine accounting services to the
Trust, and consult with the Trust's officers, independent accountants, legal
counsel, custodian, accounting agent and transfer and dividend disbursing agent
in establishing the accounting policies of the Trust; (xi) prepare such
financial information and reports as may be required by any banks from which the
Trust borrows funds; (xii) develop and implement procedures to monitor the
Trust's compliance with regulatory requirements and with the Fund's investment
policies and restrictions as set forth in the Fund's currently effective
Prospectus and Statement of Additional Information filed under the Securities
Act of 1933, as amended; and (xiii) provide such assistance to the Investment
Manager, the custodian, other Trust service providers and the Trust's counsel
and auditors as generally may be required to carry on properly the business and
operations of the Trust. The Investment Manager agrees to deliver, or cause the
Trust to deliver, to the Administrator, on a timely basis, such information as
may be necessary or appropriate for the Administrator's performance of its
duties and responsibilities hereunder, including but not limited to, shareholder
reports, records of transactions, valuations of investments (which may be based
on information provided by a pricing service) and records of expenses borne by
the Trust, and the Administrator shall be entitled to rely on the accuracy and
completeness of such information in performing its duties hereunder.
Notwithstanding anything to the contrary herein contained, the Trust, and not
the Administrator, shall be responsible for and bear the cost of any third party
pricing services or any third party blue sky services.
(b) In providing for any or all of the services indicated in section
l(a) hereof, and in satisfaction of its obligations to provide such services,
the Administrator may enter into agreements with one or more other persons to
provide such services to the Trust, provided that any such agreement shall have
been approved by the Board of Trustees of the Trust, and provided further that
the Administrator shall be as fully responsible to the Trust for the acts and
omissions of any such service providers as it would be for its own acts or
omissions hereunder.
2. Expenses of the Administrator. The Administrator assumes the
expenses of and shall pay for maintaining the staff and personnel necessary to
perform its obligations under this Agreement, and shall at its own expense
provide office space, facilities, equipment and the necessary personnel which it
is obligated to provide under section 1 hereof, except that the Trust shall pay
the expenses of legal counsel and accountants as provided in section 4(b) of
this Agreement. In addition, the Administrator shall be responsible for the
payment of any persons engaged pursuant to section l(b) hereof. The Trust shall
assume and pay or cause to be paid all other expenses of the Trust.
3. Compensation of the Administrator. For the services provided by the
Administrator pursuant to this Agreement, the Investment Manager (and not the
Fund) shall pay the Administrator on the first business day of each calendar
month a fee for the previous month at an annual rate equal to .10 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 Fund's registration
statement on Form N-lA, as amended from time to time (the "Registration
Statement"). Compensation by the Investment Manager of the Administrator 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.
4. Limitation of Liability of the Administrator; Indemnification.
(a) The Administrator 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 the Administrator in the performance of its duties hereunder.
Nothing herein contained shall be construed to protect the Administrator against
any liability to the Trust, the Fund, or shareholders to which the Administrator
shall otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of its duties, or reckless disregard of its
obligations and duties hereunder.
(b) The Administrator may, at the expense of the Trust, (i) with
respect to questions of law, apply for and obtain the advice and opinion of
counsel to the Trust, and (ii) with respect to the application of generally
accepted accounting principles or Federal tax accounting principles, apply for
and obtain the advice and opinion of the independent auditors of the Trust. The
Administrator shall be fully protected with respect to any action taken or
omitted by it in good faith in conformity with such advice or opinion.
(c) The Trust, on behalf of the Fund, agrees to indemnify and hold
harmless the Administrator from and against all charges, claims, expenses
(including legal fees) and liabilities reasonably incurred by the Administrator
in connection with the performance of its duties hereunder, except such as may
arise from the Administrator's willful misfeasance, bad faith, gross negligence
in the performance of its duties or reckless disregard of its obligations and
duties hereunder. Subject to requirements of applicable laws, such expenses
shall be paid by the Trust in advance of the final disposition of any matter
upon invoice by the Administrator and receipt by the Trust of an undertaking
from the Administrator to repay such amounts if it shall ultimately be
established that the Administrator is not entitled to payment of such expenses
hereunder.
(d) As used in this section 4, the term "Administrator" shall include
any affiliates of the Administrator performing services for the Trust
contemplated hereby and directors, officers, agents and employees of the
Administrator and such affiliates.
5. Activities of the Administrator. The services of the Administrator
under this Agreement are not to be deemed exclusive, and the Administrator and
any person controlled by or under common control with the Administrator shall be
free to render similar services to others and services to the Investment Manager
and the Trust in other capacities.
6. Duration and Termination of this Agreement.
(a) This Agreement shall become effective as of the date first above
written and shall continue in effect for an initial two-year term, and
thereafter from year to year so long as such continuation is specifically
approved at least annually by the Board of Trustees of the Trust, including a
majority of the directors who are not "interested persons" of the Trust within
the meaning of the Investment Company Act of 1940, as amended (the "1940 Act"),
and who have no direct or indirect interest in this Agreement; provided,
however, that this Agreement may be terminated at any time without the payment
of any penalty by the Trust, by the Board or by "vote of a majority of the
outstanding voting securities" (as defined in the 0000 Xxx) of the Fund, by the
Investment Manager or by the Administrator on not less than 60 days' written
notice to the other party. This Agreement shall automatically terminate in the
event of its "assignment" as defined in the 1940 Act.
(b) The Administrator hereby agrees that the books and records
prepared hereunder with respect to the Trust are the property of the Trust and
further agrees that upon the termination of this Agreement or otherwise upon
request the Administrator will surrender promptly to the Trust copies of the
books and records maintained hereunder.
7. Amendments of this Agreement. This Agreement may be amended by the
parties hereto only if such amendment is specifically approved by the Board of
Trustees of the Trust and such amendment is set forth in a written instrument
executed by each of the parties hereto.
8. 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 1940 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 1940 Act, the latter shall
control.
9. 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.
10. 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 the Investment Manager, to: President, TD Waterhouse Asset Management, Inc.,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; (b) if to the Administrator, to:
President, TD Waterhouse Investor Services, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000; or (c) if to the Trust, to: President, TD Waterhouse Trust, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;.
11. Third Party Beneficiaries. This Agreement is intended for the
benefit of the Trust and the Fund, which shall have all rights against the
Administrator as would pertain to it if this Agreement were directly between the
Trust and the Administrator.
12. Entire Agreement. This Agreement constitutes the entire agreement
of the parties with respect to the subject matter hereof and supersedes any
prior arrangements, agreements or understandings.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
TD WATERHOUSE ASSET
MANAGEMENT, INC.
By: /s/ Xxxxx Xxxxxxx
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Title: Chief Investment Officer
TD WATERHOUSE INVESTOR SERVICES,
INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Senior Vice President
TD WATERHOUSE TRUST
By: /s/ Xxxxxx X. Rio
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Title: President
