EXHIBIT 9(b)
SUB-TRANSFER AGENCY AND DIVIDEND
DISBURSING AGENCY AGREEMENT
AGREEMENT made as of the 15th day of October, 1996 by and
among WATERHOUSE NATIONAL BANK, a national banking association (the "Bank"),
NATIONAL INVESTOR SERVICES CORP., a Delaware corporation ("NISC"), and
WATERHOUSE SECURITIES, INC., a Delaware corporation ("Waterhouse Securities")
(NISC and Waterhouse Securities each may be referred to separately herein as a
"Sub-Agent" and together as the "Sub-Agents").
WITNESSETH:
WHEREAS, the Bank serves as Transfer Agent and Dividend
Disbursing Agent for each of the three separate investment portfolios (each, a
"Portfolio") of Waterhouse Investors Cash Management Fund, Inc., a Maryland
corporation and an open-end diversified management investment company registered
as such under the Investment Company Act of 1940, as amended (the "Fund"),
pursuant to a Transfer Agency and Dividend Disbursing Agency Agreement dated as
of October 15, 1996 (the "Transfer Agency Agreement"); and
WHEREAS, the Bank is authorized pursuant to the Transfer
Agency Agreement to delegate any or all of the services thereunder; and
WHEREAS, the Bank and the Sub-Agents contemplate that,
pursuant to the terms and provisions of this Agreement, following its
organization and qualification to perform the duties prescribed in this
Agreement, NISC may perform certain services as Sub-Transfer and Sub-Dividend
Disbursing Agent for the Fund on an ongoing basis, and that during the period
prior to the organization and qualification of NISC to act in such capacity,
Waterhouse Securities shall act as Sub-Transfer and Sub-Dividend Disbursing
Agent for the Fund; and
WHEREAS, the Bank desires to appoint each Sub-Agent to act as
Sub-Transfer Agent and Sub-Dividend Disbursing Agent for each Portfolio of the
Fund upon, and subject to, the terms and provisions of this Agreement; and
WHEREAS, each Sub-Agent desires to accept such appointment
upon, and subject to, such terms and provisions.
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NOW, THEREFORE, in consideration of the premises and mutual
covenants hereinafter contained, the Bank and the Sub-Agents agree as follows:
1. Appointment of each Sub-Agent as Sub-Transfer Agent and
Sub-Dividend Disbursing Agent.
(a) The Bank hereby appoints NISC to act as Sub-Transfer
Agent and Sub-Dividend Disbursing Agent for each Portfolio of the Fund upon,
and subject to, the terms and provisions of this Agreement, provided that
during the period prior to the organization and qualification of NISC to perform
its services hereunder, Waterhouse Securities shall act as Sub-Transfer and
Sub-Dividend Disbursing Agent for each Portfolio upon, and subject to, the terms
and provisions of this Agreement.
(b) Each Sub-Agent hereby accepts the appointment as
Sub-Transfer Agent and Sub-Dividend Disbursing Agent for each Portfolio of 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 Fund to the Bank, and signed on behalf
of the Fund by the President, any Vice President, the
Secretary or the Treasurer of the Fund or other authorized
person, and transmitted by the Bank to a Sub-Agent;
(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;
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(6) The term "Prospectus" includes the Prospectus and the
Statement of Additional Information of the Fund 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,
irrespective of Portfolio.
3. Duties of each Sub-Agent as Sub-Transfer Agent and
Sub-Dividend Disbursing Agent.
(a) Subject to the other provisions of the Agreement,
each Sub-Agent hereby agrees to perform any or all of the following functions
as Sub-Transfer Agent and Sub-Dividend Disbursing Agent for each Portfolio as
requested by the Bank: (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 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 Portfolios of the Fund 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 Fund; (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 the Bank or a Sub-Agent on behalf of
the Bank, 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
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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) At the request of the Bank, each Sub-Agent shall 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 Fund
the results of such tabulation accompanied by appropriate certificates, and
preparing and furnishing to the Fund certified lists of Shareholders (of the
Fund or one or more of its Portfolios, as appropriate) as of such date, in such
form and containing such information as may be required by the Fund.
(c) Each Sub-Agent agrees to deal with, and answer in a timely
manner, all correspondence and inquiries relating to the functions of the
Sub-Agent under this Agreement with respect to Accounts.
(d) Each Sub-Agent agrees to furnish to the Fund or the Bank
such information at such intervals as is necessary for the Fund 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) Each Sub-Agent agrees to provide to the Fund and the Bank
such information as may reasonably be required to enable the Fund to reconcile
the number of outstanding Shares of each Portfolio among the Sub-Agent's
records, the records of the Bank and the account books of the Fund.
(f) Notwithstanding anything in the foregoing provisions of
this section 3, each Sub-Agent 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.
4. Compensation. For the services provided by the Sub-Agents
pursuant to this Agreement, the Bank, and not the Fund or any Portfolio, shall
pay the Sub-Agents such compensation as shall be mutually agreed upon from
time to time.
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5. Maintenance of Records, Right of Inspection. In connection with the
performance of its duties hereunder, each Sub-Agent shall maintain such books
and records relating to transactions effected by such Sub-Agent as are required
by the Act, or by any other applicable provision of law, rule or regulation, to
be maintained by the Fund or its transfer agent with respect to transactions.
Each Sub-Agent 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 such Sub-Agent and the Bank.
In addition, each Sub-Agent 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. Each Sub-Agent agrees that it will, in a timely manner, make
available to, and permit, any officer, accountant, attorney or authorized agent
of the Fund or the Bank 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. Each Sub-Agent 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 Fund or the Bank, 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 Fund by way of an Instruction.
7. Indemnification.
(a) Neither Sub-Agent shall be liable to the Fund or any
Portfolio for any error of judgment or mistake of law or for any loss arising
out of any act or omission by such Sub-Agent in the performance of its duties
hereunder. Nothing herein contained shall be construed to protect the Sub-Agents
against any liability to the Fund, a Portfolio, Shareholders or any investment
adviser to the Fund to which the respective Sub-Agent 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) To the extent provided in the Transfer Agency Agreement,
the Fund has agreed to indemnify and hold harmless the Bank, each Sub-Agent and
each person, if any, who
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controls a Sub-Agent within the meaning of the Act against all charges, claims,
expenses (including legal fees) and liabilities reasonably incurred by the Bank
and each Sub-Agent in connection with the performance of its duties hereunder,
except such as may arise from the Bank's or such 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; and the Bank agrees
to indemnify and hold harmless each Sub-Agent and each person, if any, who
controls such Sub-Agent within the meaning of the Act against any and all such
charges, claims, expenses and liabilities to the extent indemnification by the
Fund is not provided by reason of the foregoing exception. Notwithstanding the
above, however, a Sub-Agent shall not be indemnified for any charges, claims,
expenses and liabilities arising from or out of such 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 Fund or the Bank, as
applicable, in advance of the final disposition of any matter upon invoice by
the Sub-Agent and receipt by the Fund or the Bank, as applicable, of an
undertaking from the Sub-Agent to repay such amounts if it shall ultimately be
established that the Sub-Agent is not entitled to payment of such expenses
hereunder.
(c) As used in this section 7, the term "Sub-Agent" shall
include directors, officers, agents and employees of each Sub-Agent.
8. Regarding the Sub-Agents.
(a) Each Sub-Agent warrants and represents that its officers
and supervisory personnel charged with carrying out its functions as
Sub-Transfer Agent and Dividend Disbursing Agent for the Fund possess the
special skill and technical knowledge appropriate for that purpose. Each
Sub-Agent shall at all times exercise due care and diligence in the performance
of its functions as Sub-Transfer Agent and Dividend Disbursing Agent for the
Fund. Each Sub-Agent 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) Each Sub-Agent warrants and represents that it is duly
authorized and permitted to act as Sub-Transfer Agent and Sub-Dividend
Disbursing Agent under all applicable
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laws and that it will immediately notify the Bank 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 Bank with respect to a Sub-Agent or by a Sub-Agent
(without penalty to the Bank or such Sub-Agent) provided that the terminating
party gives the other party written notice of such termination at least sixty
(60) days in advance, except that the Bank may terminate this Agreement
immediately upon written notice to a Sub-Agent if the authority or permission of
the Sub-Agent to act as Sub-Transfer Agent and Sub-Dividend Disbursing Agent has
been revoked or if any proceeding or other action which the Bank reasonably
believes will lead to such revocation has been commenced.
(b) Upon termination of this Agreement with respect to either
Sub-Agent, such Sub-Agent 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 Sub-Transfer Agent and
Sub-Dividend Disbursing Agent for the Fund along with a certified locator
document clearly indicating the complete contents therein, to such successor as
may be specified in a notice of termination or Instruction. Thereafter, the
Sub-Agent shall bear no 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 a Sub-Agent
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 Directors of the
Fund, including a majority of the directors of the Fund who are not "interested
persons" of the Fund within the meaning of the Act, 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
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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 any
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 Bank, to: President, Waterhouse National Bank, 0 Xxxxx Xxxxxxxxx Xxxxxx,
Xxxxx Xxxxxx, Xxx Xxxx 00000; (b) if to Waterhouse Securities, to: President,
Waterhouse Securities, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; or (c)
if to NISC, to President, National Investor Services Corp., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000; or to such other address as such party may designate by
written notice to the other. Notice also may be given by telex, telecopier,
telegram or similar means of same day delivery (with a confirming copy by mail
as provided herein).
14. Separate Portfolios. This Agreement shall be construed to be made
with respect to the Fund as a separate agreement with respect to each Portfolio,
and under no circumstances shall the rights, obligations or remedies with
respect to a particular Portfolio be deemed to constitute a right, obligation or
remedy applicable to any other Portfolio.
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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.
WATERHOUSE NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxx
WATERHOUSE SECURITIES, INC.
By: /s/ Xxxx X. Chapel
NATIONAL INVESTOR SERVICES CORP.
By: /s/ Xxxxx Xxxxxx
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