Exhibit (h)(5)
FORM OF ACCOUNTING SERVICES AGREEMENT
AGREEMENT dated as of November __, 1999 between TD Waterhouse Investor
Services, Inc. ("TD Waterhouse"), a Delaware corporation, and Countrywide Fund
Services, Inc. ("Countrywide"), an Ohio corporation.
WHEREAS, TD Waterhouse Trust (the "Trust") is an investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), currently comprised of one investment portfolio (the "Fund"); and
WHEREAS, TD Waterhouse wishes to employ the services of Countrywide to
provide the Trust with certain accounting and pricing services; and
WHEREAS, Countrywide wishes to provide such services under the
conditions set forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement, TD Waterhouse and Countrywide agree as follows:
1. APPOINTMENT.
TD Waterhouse hereby appoints and employs Countrywide as agent
to perform those services described in this Agreement for the Trust. Countrywide
shall act under such appointment and perform the obligations thereof upon the
terms and conditions hereinafter set forth.
2. CALCULATION OF NET ASSET VALUE.
Countrywide will calculate the net asset value of each Fund of
the Trust and the per share net asset value of each Fund of the Trust, in
accordance with the Trust's current prospectus and statement of additional
information, daily as of the times selected by the Trust's Board of Trustees.
Countrywide will prepare and maintain a valuation of all securities and other
assets of the Trust in accordance with instructions from a designated officer of
the Trust or TD Waterhouse and in the manner set forth in the Trust's prospectus
and statement of additional information as in effect from time to time. In
valuing securities of the Trust, Countrywide may contract with, and rely upon
market quotations provided by, outside services.
3. BOOKS AND RECORDS.
Countrywide will maintain and keep current the general ledger
for each Fund of the Trust, recording all income and expenses, capital share
activity and security transactions of the Trust. Countrywide will maintain such
further books and records as are necessary to enable it to perform its duties
under this Agreement, and will periodically provide reports to the Trust and its
authorized agents regarding share purchases and redemptions and trial balances
of each Fund of the Trust. Countrywide will prepare and maintain complete,
accurate and current records with respect to the Trust required to be maintained
by the Trust pursuant to applicable statues, rules and regulations, including
without limitation, under the Internal Revenue Code of 1986, as amended, and
under the rules and regulations of the 1940 Act, and will preserve said records
in the manner and for the periods prescribed therein. The retention of such
records shall be at the expense of the Trust.
All of the records prepared and maintained by Countrywide pursuant to
this Section 3 which are required to be maintained by the Trust under the Code
and the 1940 Act will be the property of TD Waterhouse, on behalf of the Trust,
and Countrywide agrees to make such records available for inspection by the
Trust, by any designated affiliate or agent of the Trust, and by the Securities
and Exchange Commission, at reasonable times, and otherwise to keep confidential
all records and other information relative to the Trust, except when requested
to divulge such information by duly constituted authorities and court process.
In the event this Agreement is terminated, all such records shall be delivered
to TD Waterhouse at XX Xxxxxxxxxx'x expense, and Countrywide shall be relieved
of responsibility for the preparation and maintenance of any such records
delivered to the Trust. In the event this Agreement is terminated by reason of
Countrywide's failure to comply with any provision hereof, TD Waterhouse shall
not pay expenses of Countrywide in connection with its duties in this paragraph.
4. PAYMENT OF TRUST EXPENSES.
Countrywide shall process each request received from the Trust
or TD Waterhouse for payment of the Trust's expenses. Upon receipt of written
instructions signed by two officers or other authorized agents of the Trust or
TD Waterhouse, Countrywide shall prepare checks in the appropriate amounts which
shall be signed by an authorized officer of Countrywide and mailed to the
appropriate party.
5. FORM N-SAR.
Countrywide shall maintain such records within its control and
shall be requested to assist the Trust in fulfilling the requirements of Form
N-SAR.
6. COOPERATION WITH ACCOUNTANTS.
Countrywide shall cooperate with the Trust's independent
auditors and shall take all reasonable action in the performance of its
obligations under this Agreement to assure that the necessary information is
made available to such auditors for the expression of their unqualified opinion
where required for any document for the Trust.
7. FURTHER ACTIONS.
Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
8. FEES.
For the performance of the services under this Agreement, TD
Waterhouse shall pay Countrywide a monthly fee in accordance with the schedule
attached hereto as Schedule A. The fees with respect to any month shall be paid
to Countrywide on the last business day of such month. TD Waterhouse shall also
promptly reimburse Countrywide for the cost of external pricing services
utilized by Countrywide. If this Agreement becomes effective subsequent to the
first day of a month, or is terminated before the last day of a month, fees for
the part of the month is Agreement is in effect shall be pro rated accordingly.
9. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS.
The parties hereto acknowledge and agree that nothing
contained herein shall be construed to require Countrywide to perform any
services for the Trust which services could cause Countrywide to be deemed an
"investment adviser" of the Trust within the meaning of Section 2(a)(20) of the
1940 Act or to supersede or contravene the Trust's prospectus or statement of
additional information or any provisions of the 1940 Act and the rules
thereunder. Except as otherwise provided in this Agreement and except for the
accuracy and completeness of information furnished to it by Countrywide, the
Trust assumes full responsibility for complying with all applicable requirements
of the 1940 Act, the Securities Act of 1933, as amended, and any other laws,
rules and regulations of governmental authorities having jurisdiction over the
Trust.
10. INDEMNIFICATION OF COUNTRYWIDE.
A. Countrywide may rely on information reasonably believed by it to be
accurate and reliable. Except as may otherwise be required by the 1940 Act and
the rules thereunder, neither Countrywide nor its officers, directors,
employees, agents, control persons or affiliates of any thereof shall be subject
to any liability for, or any damages, expenses or losses incurred by the Trust
or TD Waterhouse in connection with, any error of judgment, mistake of law, any
act or omission connected with or arising out of any services rendered under or
payments made pursuant to this Agreement or any other matter to which this
Agreement relates, except by reason of willful misfeasance, bad faith or
negligence on the part of any such persons in the performance of the duties of
Countrywide under this Agreement or by reason of reckless disregard by any of
such persons of the obligations and duties of Countrywide under this Agreement.
B. Any person, even though also a director, officer, employee, or agent
of Countrywide, or any of its affiliates, who may be or become an officer,
director, employee or agent of the Trust, shall be deemed, when rendering
services to the Trust or acting on any business of the Trust, to be rendering
such services to or acting solely as an officer, director, employee or agent of
the Trust and not as a director, officer, employee, shareholder or agent of or
one under the control or direction of Countrywide or any of its affiliates, even
though paid by one of those entities.
C. TD Waterhouse shall indemnify and hold harmless Countrywide, its
directors, officers, employees, agents, control persons and affiliates from and
against any and all claims, demands, expenses and liabilities of any and every
nature which Countrywide may sustain or incur or which may be asserted against
Countrywide by any person by reason of, or as a result of: (i) any action taken
or omitted to be taken by Countrywide in good faith in reliance upon any
certificate, instrument, order or share certificate reasonably believed by it to
be genuine and to be signed, countersigned or executed by any duly authorized
person, upon the oral instructions or written instructions of an authorized
person of the Trust or TD Waterhouse or upon the opinion of legal counsel for
the Trust or TD Waterhouse or its own counsel; or (ii) any action taken or
omitted to be taken by Countrywide in connection with its appointment in good
faith in reliance upon any law, act, regulation or interpretation of the same
even though the same may thereafter have been altered, changed, amended or
repealed. However, indemnification under this subparagraph shall not apply to
actions or omissions of Countrywide or its directors, officers, employees,
shareholders or agents in cases of its or their own negligence, willful
misconduct, bad faith, or reckless disregard of its or their own duties
hereunder.
11. INDEMNIFICATION OF TRUST AND TD WATERHOUSE.
Countrywide shall indemnify and hold harmless the Trust and TD
Waterhouse, and their respective directors, officers, employees, agents, control
persons and affiliates from and against any and all claims, demands, expenses
and liabilities of any and every nature which the Trust or TD Waterhouse or such
persons may sustain or incur by reason of, or as a result of Countrywide's
negligence, willful misconduct, bad faith, or reckless disregard of its duties
hereunder.
12. TERMINATION.
A. The provisions of this Agreement shall be effective on the
date first above written, shall continue in effect until ________ and shall
continue in force from year to year thereafter, but only so long as such
continuance is approved (1) by Countrywide, (2) by vote, cast in person at a
meeting called for the purpose, of a majority of the Trust's Trustees who are
not parties to this Agreement or interested persons (as defined in the 0000 Xxx)
of any such party, and (3) by vote of a majority of the Trust's Board of
Trustees or a majority of the Trust's outstanding voting securities.
B. Either party, or the Trust, may terminate this Agreement on
any date by giving all parties at least sixty (60) days' prior written notice of
such termination specifying the date fixed therefor. Upon termination of this
Agreement, TD Waterhouse shall pay to Countrywide such compensation as may be
due as of the date of such termination, and shall likewise reimburse Countrywide
for any out-of-pocket expenses and disbursements reasonably incurred by
Countrywide to such date.
C. In the event that in connection with the termination of
this Agreement a successor to any of Countrywide's duties or responsibilities
under this Agreement is designated by TD Waterhouse by written notice to
Countrywide, Countrywide shall, promptly upon such termination and at the
expense of TD Waterhouse, transfer to the Trust or its successor, as indicated
by such notice, all records maintained by Countrywide under this Agreement and
shall cooperate in the transfer of such duties and responsibilities, including
provision for assistance from Countrywide's cognizant personnel in the
establishment of books, records and other data by such successor. In the event
this Agreement is terminated by reason of Countrywide's failure to comply with
any provision hereof, TD Waterhouse shall not pay any expenses of Countrywide in
connection with its duties in this paragraph.
13. SERVICES FOR OTHERS.
Nothing in this Agreement shall prevent Countrywide or any
affiliated person (as defined in the 0000 Xxx) of Countrywide from providing
services for any other person, firm or corporation (including other investment
companies); provided, however, that Countrywide expressly represents that it
will undertake no activities which, in its judgment, will adversely affect the
performance of its obligations to TD Waterhouse under this Agreement.
14. SEVERABILITY.
In the event any provision of this Agreement is determined to
be void or unenforceable, such determination shall not affect the remainder of
this Agreement, which shall continue to be in force.
15. QUESTIONS OF INTERPRETATION.
This Agreement shall be governed by the laws of the State of
New York. Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term or provision
of the 1940 Act shall be resolved by reference to such term or provision of the
1940 Act and to interpretations thereof, if any, by the United States Courts or
in the absence of any controlling decision of any such court, by rules,
regulations or orders of the Securities and Exchange Commission issued pursuant
to said 1940 Act. In addition, where the effect of a requirement of the 1940
Act, reflected in any provision of this Agreement, is revised by rule,
regulation or order of the Securities and Exchange Commission, such provision
shall be deemed to incorporate the effect of such rule, regulation or order.
16. NOTICES.
All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including telex
and telegraphic communication) and shall be (as elected by the person giving
such notice) hand delivered by messenger or courier service, telecommunicated,
or mailed (airmail if international) by registered or certified mail (postage
prepaid), return receipt requested, addressed to:
To TD Waterhouse and the Trust: TD Waterhouse Investor Services, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
To Countrywide: Countrywide Fund Services, Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: ___________
or to such other address as any party may designate by notice complying with the
terms of this Section 16. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery; (b) on the date telecommunicated if by
telegraph; (c) on the date of transmission with confirmed answer back if by
telex, telefax or other telegraphic method; and (d) on the date upon which the
return receipt is signed or delivery is refused or the notice is designated by
the postal authorities as not deliverable, as the case may be, if mailed.
17. AMENDMENT.
This Agreement may not be amended or modified except by a
written agreement executed by both parties and approved by the Trust's Board of
Trustees.
18. BINDING EFFECT.
Each of the undersigned expressly warrants and represents that
he has the full power and authority to sign this Agreement on behalf of the
party indicated, and that his signature will operate to bind the party indicated
to the foregoing terms.
19. COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
20. FORCE MAJEURE.
If Countrywide shall be delayed in its performance of services
or prevented entirely or in part from performing services due to causes or
events beyond its control, including and without limitation, acts of God,
interruption of power or other utility, transportation or communication
services, acts of civil or military authority, sabotages, national emergencies,
explosion, flood, accident, earthquake or other catastrophe, fire, strike or
other labor problems, legal action, present or future law, governmental order,
rule or regulation, or shortages of suitable parts, materials, labor or
transportation, such delay or non-performance shall be excused and a reasonable
time for performance in connection with this Agreement shall be extended to
include the period of such delay or non-performance.
21. MISCELLANEOUS.
The captions in this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
TD WATERHOUSE INVESTOR SERVICES, INC.
By:_____________________________
Its: President
COUNTRYWIDE FUND SERVICES, INC.
By:_____________________________
Its: President
Schedule A
COMPENSATION
Countrywide will receive a monthly fee with respect to the Fund, based upon the
average net assets of such Fund during such month, in accordance with the
following schedule:
Fund's Average Net Assets Monthly Fee
Less than $100,000,000 $2,500
$100,000,000 - $250,000,000 3,500
$250,000,000 - $400,000,000 4,500
$400,000,000 - $500,000,000 5,000
Over $600,000,000 6,000 + .001%
The fee of .001% on assets over $500,000,000 represents the asset based fee
Countrywide is charged by SunGard.
Countrywide will be reimbursed for the cost of external pricing services used by
the Fund.
