As filed with the Securities and Exchange Commission on November 5, 1999
1933 Act Registration No. 333-84623
1940 Act Registration No. 811-9519
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [ ]
Pre-Effective Amendment No. 1 [X]
Post-Effective Amendment No. [ ]
and/or
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 [ ]
Amendment No. 1 [X]
------------------
TD WATERHOUSE TRUST
(Exact Name of Registrant as Specified in Charter)
100 WALL STREET, NEW YORK, NEW YORK 10005
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code:
(617) 557-3416
Christopher J. Kelley, Esq.
TD Waterhouse Trust
c/o Funds Distributor, Inc.
60 State Street, Suite 1300, Boston, Massachusetts 02109
(Name and Address of Agent for Service)
Copies of communications to:
Margery K. Neale, Esq.
Swidler Berlin Shereff Friedman, LLP
919 Third Avenue
New York, New York, 10022-9998
Approximate Date of Proposed Public Offering: As soon as practicable after the
effective date of this Registration Statement.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PART A
The Prospectus for TD Waterhouse Dow 30 Fund, contained as Part A in
Registrant's initial Registration Statement on Form N-1A filed on August 6, 1999
(accession number 0000889812-99-002330) is incorporated herein by reference.
<PAGE>
PART B
The Statement of Additional Information for TD Waterhouse Dow 30 Fund, contained
as Part B in Registrant's initial Registration Statement on Form N-1A filed on
August 6, 1999 (accession number 0000889812-99-002330) is incorporated herein by
reference.
<PAGE>
PART C
OTHER INFORMATION
Item 23. Exhibits.
(a) (1) Certificate of Trust (See Note A)
(2) Agreement and Declaration of Trust (See Note A)
(b) By-Laws (See Note A)
(c) Instruments Defining Shareholder Rights (incorporated by
reference to Exhibits a and b to the Registration Statement
above)
(d) Form of Investment Management Agreement (filed herewith)
(e) (1) Form of Distribution Agreement (filed herewith)
(2) Form of Agency Selling Agreement (filed herewith)
(f) Inapplicable
(g) (1) Form of Custody Agreement (filed herewith)
(2) Form of Foreign Custody Manager Agreement (filed herewith)
(h) (1) Form of Transfer Agency and Dividend Disbursing Agency
Agreement (filed herewith)
(2) Form of Shareholder Servicing Plan and Related Agreements
(filed herewith)
(3) Form of Administration Agreement (filed herewith)
(4) Form of Subadministration Agreement (filed herewith)
(5) Form of Accounting Services Agreement (filed herewith)
(6) Form of State Registration Services Agreement (filed herewith)
(i) Opinion and Consent of Swidler Berlin Shereff Friedman, LLP as
to legality of the securities being registered (filed
herewith)
(j) Consent of Independent Auditors (See Note A)
(k) Inapplicable
(l) Purchase Agreement (filed herewith)
(m) Inapplicable
(n) Inapplicable
(o) Inapplicable
Other Exhibit:
<PAGE>
Power of Attorney for Richard Dalrymple, Carolyn B. Lewis, George F.
Staudter and Lawrence Toal dated September 8, 1999 (filed herewith)
Note A: Filed as an exhibit to Registrant's Registration Statement on Form
N-1A, File Nos. 333-84623; 811-9519, on August 6, 1999, and
incorporated herein by reference.
Item 24. Persons Controlled by or under Common Control with Registrant.
Not applicable.
Item 25. Indemnification.
As permitted by Sections 17(h) and (i) of the Investment Company Act of
1940, as amended (the "Investment Company Act"), and pursuant to Article VII of
the Agreement and Declaration of Trust (Exhibit (a)(2) to the Registration
Statement) and Article XI of the Trust's By-Laws (Exhibit (b) to the
Registration Statement), officers, trustees, employees and agents of the
Registrant will not be liable to the Registrant, any stockholder, officer,
director, employee, agent or other person for any action or failure to act,
except for bad faith, willful misfeasance, gross negligence or reckless
disregard of duties, and those individuals may be indemnified against
liabilities in connection with the Registrant, subject to the same exceptions.
Section 3817 of the Delaware Business Trust permits indemnification of trustees
who acted in good faith and reasonably believed that the conduct was in the best
interest of the Registrant. As permitted by Section 17(i) of the Investment
Company Act, pursuant to Section 1.9 of the Distribution Agreement (a form of
which is filed herewith), the Distributor of the Registrant may be indemnified
against liabilities which it may incur, except liabilities arising from bad
faith, gross negligence, willful misfeasance or reckless disregard of duties.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act") may be permitted to trustees,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Investment Company Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a trustee, officer or controlling person of the Registrant in connection
with the successful defense of any action, suit or proceeding) is asserted
against the Registrant by such trustee, officer or controlling person in
connection with the shares being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Investment
Company Act and will be governed by the final adjudication of such issue.
The Registrant has purchased an insurance policy insuring its officers
and trustees against liabilities, and certain costs of defending claims against
such officers and trustees, to the extent such officers and trustees are not
found to have committed conduct constituting willful misfeasance, bad faith,
gross negligence or reckless disregard in the performance of their duties. The
insurance policy also insures the Registrant against the cost of indemnification
payments to officers and trustees under certain circumstances.
Section 6 of the Investment Management Agreement (a form of which is
filed herewith) limits the liability of the Investment Manager to liabilities
arising from willful misfeasance, bad faith or gross negligence in the
performance of its duties or from reckless disregard by it of its obligations
and duties under the agreements.
The Registrant hereby undertakes that it will apply the indemnification
provisions of its By-Laws and the Distribution Agreement in a manner consistent
with Release No. 11330 of the Securities and Exchange Commission under the
Investment Company Act as long as the interpretation of Section 17(h) and 17(i)
of such Act remains in effect and is consistently applied.
Item 26. Business and Other Connections of Investment Adviser.
The following persons are the directors and officers of the Investment
Manager:
<PAGE>
DAVID HARTMAN*, Senior Vice President and Chief Investment Officer.
From February 1995 through August 1995, Mr. Hartman served as Senior Vice
President and Senior Portfolio Manager of Fixed Income Separate Accounts at
Mitchell Hutchins - Paine Webber. Mr. Hartman also served in similar capacities
for Kidder Peabody & Co. from 1983 to 1995.
RICHARD H. NEIMAN*, Director and Secretary. Mr. Neiman has served as
Executive Vice President, General Counsel, Director and Secretary of TD
Waterhouse Holdings, Inc. since July 1994. Mr. Neiman also serves in similar
capacities for TD Waterhouse Investor Services, Inc.
[KEITH GRAY] [Add disclosure]
B. KEVIN STERNS**, Senior Vice President, Chief Financial Officer and
Treasurer. Mr. Sterns has served as Executive Vice President, Chief Financial
Officer and Treasurer of Waterhouse Investor Services, Inc. and Waterhouse
Securities, Inc. since October 1996. Prior to that, Mr. Sterns served as
Director of Toronto-Dominion Bank from October 1970 to October 1996
MICHELE R. TEICHNER*, Senior Vice President Operations and Compliance.
Ms. Teichner has been serving as Senior Vice President of Waterhouse Asset
Management, Inc. since August 1996, with responsibility for operations and
compliance.
LAWRENCE M. WATERHOUSE, Jr.*, Director. Mr. Waterhouse has served as
Chairman of TD Waterhouse Holdings, Inc. since its inception in 1987 and Chief
Executive Officer from August 1989 to March 1998. Mr. Waterhouse is the founder
of TD Waterhouse Investor Services, Inc. and has served as Chief Executive
Officer since its inception in March 1979. Mr. Waterhouse is a Director of TD
Waterhouse Group, Inc. since June 1999. Mr. Waterhouse also serves as Chairman
of TD Waterhouse Bank, N.A. and Director of National Investor Services Corp.
since July 1994 and September 1995, respectively.
* Address: 100 Wall Street, New York, NY 10005
** Address: 55 Water Street, New York, NY 10041
Item 27. Principal Underwriters.
(a) Funds Distributor, Inc. (the "Distributor") acts as principal
underwriter for the following other investment companies.
American Century California Tax-Free and Municipal Funds
American Century Capital Portfolios, Inc.
American Century Government Income Trust
American Century International Bond Funds
American Century Investment Trust
American Century Municipal Trust
American Century Mutual Funds, Inc.
American Century Premium Reserves, Inc.
American Century Quantitative Equity Funds
American Century Strategic Asset Allocations, Inc.
American Century Target Maturities Trust
American Century Variable Portfolios, Inc.
American Century World Mutual Funds, Inc.
The Brinson Funds
Dresdner RCM Capital Funds, Inc.
Dresdner RCM Global Funds, Inc.
Dresdner RCM Investment Funds Inc.
J.P. Morgan Institutional Funds
J.P. Morgan Funds
JPM Series Trust
JPM Series Trust II
<PAGE>
LaSalle Partners Funds, Inc.
Merrimac Series
Monetta Fund, Inc.
Monetta Trust
The Montgomery Funds I
The Montgomery Funds II
The Munder Framlington Funds Trust
The Munder Funds Trust
The Munder Funds, Inc.
National Investors Cash Management Fund, Inc.
Nomura Pacific Basin Fund, Inc.
Orbitex Group of Funds
Saratoga Advantage Trust
SG Cowen Funds, Inc.
SG Cowen Income + Growth Fund, Inc.
SG Cowen Standby Reserve Fund, Inc.
SG Cowen Standby Tax-Exempt Reserve Fund, Inc.
SG Cowen Series Funds, Inc.
SoGen Funds, Inc.
SoGen Variable Funds, Inc.
St. Clair Funds, Inc.
The Skyline Funds
TD Waterhouse Family of Funds, Inc.
WEBS Index Fund, Inc.
Funds Distributor is registered with the Securities and Exchange
Commission as a broker-dealer and is a member of the National Association of
Securities Dealers. Funds Distributor is an indirect wholly-owned subsidiary of
Boston Institutional Group, Inc., a holding company all of whose outstanding
shares are owned by key employees.
(b) The following is a list of the executive officers, directors and
partners of Funds Distributor, Inc.
Director, President and Chief Executive Officer - Marie E. Connolly
Executive Vice President - George A. Rio
Executive Vice President - Donald R. Roberson
Executive Vice President - William S. Nichols
Senior Vice President, General Counsel, Chief - Margaret W. Chambers
Compliance Officer, Secretary and Clerk
Director, Senior Vice President, Treasurer and - Joseph F. Tower, III
Chief Financial Officer
Senior Vice President - Paula R. David
Senior Vice President - Gary S. MacDonald
Senior Vice President - Judith K. Benson
Chairman and Director - William J. Nutt
(c) Not applicable.
Item 28. Location of Accounts and Records.
All accounts, books and other documents required to be maintained
pursuant to Section 31(a) of the Investment Company Act and the Rules thereunder
are maintained at the offices of the Registrant, the offices of the Registrant's
Investment Adviser and Administrator, TD Waterhouse Asset Management, Inc. and
TD Waterhouse Investor Services, Inc., respectively, 100 Wall Street, New York,
New York 10005, or (i) in the case of records concerning custodial functions, at
the offices of the Registrant's Custodian, The Bank of New York, 48 Wall Street,
New York, New York 10286; (ii) in the case of records concerning transfer agency
functions, at the offices of the
<PAGE>
Registrant's Transfer Agent and Dividend Disbursing Agent, National Investor
Services Corp., 55 Water Street, New York, New York 10041; (iii) in the case of
records concerning distribution, administration and certain other functions, at
the offices of the Fund's Distributor and Sub-Administrator, Funds Distributor,
Inc., 60 State Street, Suite 1300, Boston, Massachusetts 02109; and (iv) in the
case of records concerning fund accounting functions, at the offices of the
Fund's fund accountant, Countrywide Fund Services Inc., 312 Walnut Street,
Cincinnati, Ohio 45202.
Item 29. Management Services.
Not applicable.
Item 30. Undertakings.
Not applicable.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized, in the City of Boston and Commonwealth of Massachusetts on the 4th
day of November, 1999.
TD WATERHOUSE TRUST
Registrant
By /s/ Christopher J. Kelley
Christopher J. Kelley
Vice President and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
amendment to its Registration Statement has been signed below on behalf of the
following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ George A. Rio President, Treasurer November 4, 1999
George A. Rio and Chief Financial
Officer
George F. Staudter* Chairman of the Board
and Trustee
Richard W. Dalrymple* Trustee
Carolyn B. Lewis* Trustee
Lawrence J. Toal* Trustee
*By /s/ Richard H. Neiman
Richard H. Neiman
Attorney-in-Fact pursuant to a power
of attorney
<PAGE>
INDEX TO EXHIBITS
(d) Form of Investment Management Agreement
(e) (1) Form of Distribution Agreement
(2) Form of Agency Selling Agreement
(g) (1) Form of Custody Agreement
(2) Form of Foreign Custody Manager Agreement
(h) (1) Form of Transfer Agency and Dividend Disbursing Agency Agreement
(2) Form of Shareholder Servicing Plan and Related Agreements
(3) Form of Administration Agreement
(4) Form of Subadministration Agreement
(5) Form of Accounting Services Agreement
(6) Form of State Registration Services Agreement
(i) Opinion and Consent of Swidler Berlin Shereff Friedman, LLP
(l) Form of Purchase Agreement
Other Exhibit Power of Attorney
Exhibit (d)
FORM OF INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this ___ day of ________, 1999, by and between
TD WATERHOUSE TRUST, a Delaware business trust, whose address is 100 Wall
Street, New York, New York 10005 (the "Trust") and TD WATERHOUSE ASSET
MANAGEMENT, INC., a Delaware corporation, whose address is 100 Wall Street, New
York, New York 10005 (the "Investment Manager").
W I T N E S S E T H:
WHEREAS, the Trust is an open-end, management investment
company, registered under the Investment Company Act of 1940, as amended (the
"1940 Act"), with one distinct series of shares, TD Waterhouse Dow 30 Fund (the
"Fund"), as more fully described in the Trust's Registration Statement on Form
N-1A under the 1940 Act and the Securities Act of 1933, as amended (the
"Registration Statement"), as filed with the Securities and Exchange Commission
(the "Commission") relating to the Trust and shares of the Trust's beneficial
interest, and all amendments thereto;
WHEREAS, the Investment Manager is registered as an investment
adviser under the Investment Advisers Act of 1940, as amended; and
WHEREAS, the Trust and the Investment Manager desire to enter
into an agreement to provide for comprehensive management and investment
advisory services to the Fund upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is hereby agreed by and between the parties
hereto as follows:
1. Duties of Investment Manager. (a) The Trust hereby employs
the Investment Manager to act as the investment adviser for the Fund and to
manage the investment and reinvestment of the assets of the Fund in accordance
with the investment objectives, policies and restrictions of the Fund as the
same are set forth in the Registration Statement, and in accordance with the
requirements of the 1940 Act and all other applicable state and federal laws,
rules and regulations, subject to the supervision of the Board of Trustees of
the Trust for the period and upon the terms herein set forth. The investment of
funds shall also be subject to all applicable restrictions of the Agreement and
Declaration of Trust and By-Laws of the Trust as may from time to time be in
force. Without limiting the generality of the foregoing, the Investment Manager
shall:
(i) formulate and implement a continuing program for the
purchases and sales of securities for the Fund and regularly report thereon to
the Trust's Board of Trustees; and
(ii) make decisions with respect to and take, on behalf of the
Fund, all actions which appear necessary to carry into effect such purchase and
sale program and supervisory functions aforesaid, including the placing of
orders for the purchase and sale of securities for the Fund.
<PAGE>
(b) Subject to the supervision and direction of the Board of
Trustees of the Trust, the Investment Manager also shall perform or arrange for
the performance of the following administrative and clerical services with
respect to the Fund: (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 Fund's shares; (iv)
calculate, or arrange for the calculation of, dividends and distributions and
performance data, and prepare other financial information regarding the Fund;
(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 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. Notwithstanding anything to
the contrary herein contained, the Trust, and not the Investment Manager, shall
be responsible for and bear the cost of any third party pricing services or any
third party blue sky services.
(c) The Investment Manager accepts such employment and agrees
during such period to render such services and to assume the obligations herein
set forth for the compensation herein provided. The Investment Manager shall
give the Fund the benefit of its best judgment, efforts and facilities in
rendering its services as an investment manager. The Investment Manager shall
for all purposes herein provided be deemed to be an independent contractor and,
unless otherwise expressly provided or authorized, shall have no authority to
act for or represent the Trust in any way or otherwise be deemed an agent of the
Trust. It is understood and agreed that the
<PAGE>
Investment Manager, by separate agreements with the Trust, may
also serve the Trust in other capacities. It is further agreed that the
Investment Manager and its officers and directors are not prohibited from
engaging in any other business activity or from rendering services to any other
person, or from serving as partners, officers or directors of any other firm or
corporation, including other investment companies, so long as its or their
services hereunder are not impaired thereby. It is further agreed that personnel
of the Investment Manager may invest in securities for their own account
pursuant to a code of ethics that sets forth all employees' fiduciary
responsibilities regarding the Trust, establishes procedures for personal
investing and restricts certain transactions.
(d) The Investment Manager shall keep any books and records
relevant to the provision of its investment advisory services to the Fund and
shall specifically maintain all books and records with respect to the Fund's
securities and portfolio transactions and shall render to the Trust's Board of
Trustees such periodic and special reports as the Board may reasonably request.
The Investment Manager agrees that all records which it maintains for the Trust
are the property of the Trust and it will surrender promptly to the Trust any
such records upon the Trust's request, provided however that the Investment
Manager may retain a copy of such records. The Investment Manager further agrees
to preserve for the periods prescribed by Rule 31a-2 under the 1940 Act any such
records kept by the Investment Manager in connection with investment advisory
services provided pursuant hereto.
(e) The Trust has delivered to the Investment Manager copies
of each of the following documents and will deliver to it all future amendments
and supplements thereto, if any:
(i) The Registration Statement; and
(ii) The Prospectus of the Fund (such Prospectus and the
related Statement of Additional Information of the
Fund, as currently in effect and as amended or
supplemented from time to time, being herein
collectively called the "Prospectus").
(f) The Trust shall at all times keep the Investment Manager
fully informed with regard to the securities owned by the Fund, its funds
available or to become available for investment, and generally as to the
condition of its affairs. The Trust shall furnish the Investment Manager with a
copy of all financial statements and each report prepared by certified public
accountants with respect to it, and with such other information with regard to
its affairs as the Investment Manager may from time to time reasonably request.
(g) The Investment Manager may enter into agreements with one
or more other persons, including affiliates of the Investment Manager, to
perform any or all the Investment Manager's duties hereunder, provided that (i)
any such agreement shall have been approved by the Board of Trustees of the
Trust; (ii) the Investment Manager 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; and (iii) the cost of performance of such
duties by others are to be borne and paid by the Investment Manager.
<PAGE>
(h) Any investment program undertaken by the Investment
Manager pursuant to this Agreement, as well as any other activities undertaken
by the Investment Manager on behalf of the Fund pursuant thereto, shall at all
times be subject to any directives of the Board of Trustees.
2. Expenses. The Investment Manager shall pay all of its
expenses arising from the performance of its obligations under Section 1 of this
Agreement, including the payment of any persons engaged pursuant to Section
l(g), and shall pay any salaries, fees and expenses of Trust directors or
officers who are employees, officers or directors of the Investment Manager.
The Investment Manager shall not be required to pay any other
expenses of the Trust or the Fund, including (a) the fees and expenses of
directors who are not "interested persons" of the Trust, as defined by the 1940
Act, and travel and related expenses of the directors for attendance at
meetings; (b) the fees and expenses of the custodian and transfer agent of the
Trust or any pricing service, including but not limited to fees and expenses
relating to Trust accounting, pricing of portfolio shares, and computation of
net asset value; (c) the fees and expenses of calculating yield and/or
performance of the Fund; (d) the charges and expenses of legal counsel and
independent accountants; (e) taxes and corporate fees payable to governmental
agencies; (f) the costs of share certificates and of membership dues of any
trade association of which the Trust is a member; (g) reimbursement of the
organization expenses of the Fund; (h) the fees and expenses involved in
registering and maintaining registration of the Trust and the Fund's shares with
the Commission, blue sky service providers, registering the Trust as a broker or
dealer and qualifying the shares of the Fund (or applying for applicable
exemptions, as the case may be) under state securities laws, including the
preparation and printing of the registration statements and prospectuses for
such purposes; (i) allocable communications expenses with respect to investor
services, expenses of shareholders' and Board of Trustees' meetings and
preparing, printing and mailing proxies, prospectuses and reports to
shareholders; (j) costs of acquiring and disposing of portfolio securities,
including but not limited to brokers' commissions, dealers' mark-ups and any
issue or transfer taxes chargeable in connection with the Fund's transactions;
(k) the cost of stock certificates representing shares of the Fund, if any; (l)
insurance expenses, including, but not limited to, the cost of a fidelity bond,
directors and officers insurance and errors and omissions insurance; and (m)
litigation and indemnification expenses, expenses incurred in connection with
mergers, and other extraordinary expenses not incurred in the ordinary course of
the Fund's business.
3. Compensation. (a) For the services described in Section 1
hereof, the Trust, on behalf of the Fund, will pay to the Investment Manager
promptly after the end of each calendar month, an investment management fee
computed at the annual rate applicable to the Fund set forth on Schedule A
hereto. The fee as computed in accordance with Schedule A shall be based upon
the net assets of the Fund as to which this Agreement is then effective. The
value of the net assets for the Fund shall be calculated in accordance with the
provisions of the Fund's Prospectus. For purposes of this Agreement, on each day
when net asset value is not calculated, the net assets of the Fund shall be
deemed to be the net assets of the Fund as of the close of business on the last
day on which net asset value was determined. Except as hereinafter set forth,
compensation under this Agreement shall be calculated and accrued daily and the
amounts of the daily accruals shall be paid monthly in arrears (i.e., the
applicable annual fee rate divided by 365 as applied to each prior day's net
assets in order to calculate the daily accrual). If this Agreement becomes
effective subsequent to the first day of a month or shall terminate before the
last day of a month, compensation for that part
<PAGE>
of the month this Agreement is in effect shall be prorated in a manner
consistent with the calculation of the fees as set forth above.
(b) In the event the operating expenses of the Fund including
all management fees, for any fiscal year ending on a date on which this
Agreement is in effect exceed the expense limitation applicable to the Fund
imposed by the securities laws or regulations thereunder of any state or
jurisdiction in which the Fund's shares are qualified for sale, as such
limitations may be raised or lowered from time to time, the Investment Manager
shall reduce its management fee to the extent of such excess and, if required,
pursuant to any such laws or regulations, will reimburse the Fund for any annual
operating expenses (after reductions of all management fees) in excess of any
expense limitation that may be applicable; provided, however, there shall be
excluded from such expenses the amount of any interest, taxes, brokerage
commission and extraordinary expenses (including but not limited to legal claims
and liabilities and litigation costs and any indemnification related thereto)
paid or payable by the Trust and attributable to the Fund. Such reduction, if
any, shall be computed and accrued daily, shall be settled on a monthly basis
and shall be based upon the expense limitation applicable to the Fund as at the
end of the last business day of the month. Should two or more such expense
limitations be applicable as at the end of the last business day of the month,
that expense limitation which results in the largest reduction in the Investment
Manager's fee shall be applicable.
4. Brokerage. In managing the assets of the Fund, the
Investment Manager shall purchase securities from or through and sell securities
to or through such persons, brokers or dealers as the Investment Manager shall
deem appropriate in conformity with applicable law and with the terms of the
Registration Statement, and as the Trust's Board of Trustees may direct from
time to time. Without limiting the generality of the foregoing, the Investment
Manager will implement the Trust's policy of seeking the best execution of
orders, which includes best net prices, in effecting purchases and sales of
portfolio securities for the account of the Fund (consistent with this
obligation, when the execution and price offered by two or more persons, brokers
or dealers are comparable, the Investment Manager, in its discretion, purchase
and sell portfolio securities to and from persons, brokers and dealers who
provide the Investment Manager with research advice and other services).
On occasions when the Investment Manager deems the purchase or
sale of securities to be in the best interest of the Fund and one or more of the
other investment portfolios of the Trust, as well as other clients of the
Investment Manager, the Investment Manager, to the extent permitted by
applicable laws and regulations, may, but shall be under no obligation to,
aggregate the securities to be so sold or purchased in order to obtain the most
favorable price or lower brokerage commissions and efficient execution. In such
event, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Investment Manager in
accordance with its policy for aggregation of orders, as in effect from time to
time.
5. Interested Persons. No Trustee, officer or employee of the
Trust shall receive from the Trust any salary or other compensation as such
Trustee, officer or employee while he or she is at the same time a director,
officer or employee of the Investment Manager or any affiliated person (as
defined in the 1940 Act) thereof. The Investment Manager shall authorize and
permit any of its directors, officers and employees who may be elected as
Trustees or officers of the
<PAGE>
Trust to serve in the capacities in which they are elected, subject to their
individual consent and to any limitations imposed by law. All services to be
furnished by the Investment Manager under this Agreement may be furnished
through the medium of any such directors, officers or employees of the
Investment Manager.
6. Limitation of Liability. Subject to Section 36 of the 1940
Act, the Investment Manager shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Fund in connection with the
matters to which this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on the part of the Investment Manager
in the performance of its obligations and duties or by reason of its reckless
disregard of its obligations and duties under this Agreement.
7. Non-Exclusive Use of the Name "TD Waterhouse". The Trust
acknowledges that it adopted its name and the name of the Fund through the
permission of the Investment Manager. The Investment Manager hereby consents to
the non-exclusive use by the Trust of the marks "TD Waterhouse", "TD Waterhouse
Family of Funds, Inc.", "TD Waterhouse Trust" and the TD Waterhouse logo only so
long as the Investment Manager (or its affiliate or successor) serves as the
investment manager to one or more portfolios of the Trust. The Trust covenants
and agrees to protect, exonerate, defend, indemnify and hold harmless the
Investment Manager, its officers, agents and employees from and against any and
all costs, losses, claims, damages or liabilities, joint or several, including
all legal expenses which may arise or have arisen out of the Trust's use or
misuse of the name "TD Waterhouse", "TD Waterhouse Trust" or the TD Waterhouse
logo or out of any breach of or failure to comply with this paragraph.
Neither the Trust nor the Fund shall distribute or circulate
any prospectus, proxy statement, sales literature, promotional material or other
printed matter required to be filed with the Securities and Exchange Commission
under Section 24(b) of the 1940 Act which contains any reference to the
Investment Manager or using the name "TD Waterhouse", "TD Waterhouse Family of
Funds, Inc.", "TD Waterhouse Trust" or the TD Waterhouse logo without the
approval of the Investment Manager and shall submit all such materials requiring
approval of the Investment Manager in draft form, allowing sufficient time for
review by the Investment Manager and its counsel prior to any deadline for
printing. If the Investment Manager or any successor to its business shall cease
to furnish services to the Trust under this Agreement or similar contractual
arrangement, the Trust:
(a) as promptly as practicable, will take all necessary action
to cause its Articles of Incorporation to be amended to accomplish a change of
name; and
(b) within 90 days after the termination of this Agreement or
such similar contractual arrangement, shall cease to use in any other manner,
including but not limited to use in any prospectus, sales literature or
promotional material, the name "TD Waterhouse", "TD Waterhouse Family of Funds,
Inc.", "TD Waterhouse Trust" and the TD Waterhouse logo or any name, mark or
logotype derived from or similar to such marks or indicating that the Trust or
the Fund is managed by or otherwise associated with the Investment Manager.
<PAGE>
8. Term of Agreement. This Agreement shall become effective
upon its execution by an authorized officer of the respective parties hereto.
This Agreement 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 in conformity with the requirements of the 1940 Act
with regard to investment advisory contracts; 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 1940 Act) of the Fund, or by the Investment
Manager on not less than 60 days' written notice to the other party. This
Agreement shall terminate automatically in the event of its "assignment" (as
defined in the 1940 Act).
Termination of this Agreement shall not affect the right of
the Investment Manager to receive payments on any unpaid balance of the
compensation described in Section 3 hereof earned prior to such termination.
9. Amendments; Partial Invalidity. This Agreement may be
amended by mutual consent, but the consent of the Trust must be obtained in
conformity with the requirements of the 1940 Act. If any provision of this
Agreement shall be held or made invalid by a court decision, statute, rule or
otherwise, the remainder shall not be thereby affected.
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 postmark if
such notice is mailed first class postage prepaid. Notice shall be addressed:
(a) if to the Trust, to: President, TD Waterhouse Trust, 100 Wall Street, New
York, New York 10005; or (b) if to the Investment Manager, to: President, TD
Waterhouse Asset Management, Inc., 100 Wall Street, New York, New York 10005, or
at such other address as either party may designate by written notice to the
other. Notice shall also 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).
<PAGE>
11. Entire Agreement; Governing Law. This Agreement contains
the entire agreement between the parties hereto and supersedes all prior
agreements, understandings and arrangements with respect to the subject matter
hereof. This Agreement shall be construed in accordance with applicable federal
law and the laws of the State of New York. Anything herein to the contrary
notwithstanding, this Agreement shall not be construed to require, or to impose
any duty upon, either of the parties to do anything in violation of any
applicable laws or regulations.
IN WITNESS WHEREOF, the Trust and the Investment Manager have
caused this Agreement to be executed as of the day and year first above written.
TD WATERHOUSE TRUST
By:
---------------------------
WITNESS:
- ---------------------------
TD WATERHOUSE ASSET
MANAGEMENT, INC.
By:
---------------------------
WITNESS:
- ---------------------------
<PAGE>
SCHEDULE A
FEES
For the services provided by the Investment Manager under the foregoing
agreement to the Fund, the Investment Manager will receive the following fee:
An annual fee, payable monthly, of .20 of 1% of average daily net assets of the
Fund.
Exhibit (e)(1)
FORM OF DISTRIBUTION AGREEMENT
TD WATERHOUSE TRUST
100 WALL STREET
NEW YORK, NY 10005
_________, 1999
Funds Distributor, Inc.
60 State Street
Suite 1300
Boston, Massachusetts 02109
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the above-named investment company (the "Trust") has agreed that you
shall be, for the period of this agreement, the distributor of (a) shares of
each Series of the Trust set forth on Exhibit A hereto, as such Exhibit may be
revised from time to time (each, a "Series") or (b) if no Series are set forth
on such Exhibit, shares of the Trust. For purposes of this agreement, the term
"Shares" shall mean the authorized shares of the relevant Series, if any, and
otherwise shall mean the Trust's authorized shares.
1.Services as Distributor
1.1 You will act as agent for the distribution of Shares covered by, and
in accordance with, the registration statement and prospectus of the Trust then
in effect under the Securities Act of 1933, as amended, and will transmit
promptly, any orders received by you for purchase or redemption of Shares to the
Transfer and Dividend Disbursing Agent for the Trust of which the Trust has
notified you in writing.
1.2 You agree to use your best efforts to solicit orders for the sale of
Shares in accordance with the terms and conditions of the aforementioned
prospectus. It is contemplated that you may enter into sales or servicing
agreements with securities dealers, financial institutions and other industry
professionals, such as investment advisers, accountants and estate planning
firms, and in so doing you will act only on your own behalf as principal.
1.3 You shall act as distributor of Shares in compliance with all
applicable laws, rules and regulations, including, without limitation, all rules
and regulations made or adopted pursuant
<PAGE>
to the Investment Company Act of 1940, as amended (the " 1940 Act"), by the
Securities and Exchange Commission or any securities association registered
under the Securities Exchange Act of 1934, as amended, and the Glass-Steagall
Act to the extent applicable.
1.4 Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by abnormal circumstances of any
kind deemed by the parties hereto to render sales of a Trust's Shares not in the
best interest of the Trust, the parties hereto may decline to accept any orders
for, or make any sales of, any Shares until such time as those parties deem it
advisable to accept such orders and to make such sales; and each party shall
advise promptly the other party of any such determination.
1.5 The Trust agrees to pay all costs and expenses in connection with the
registration of Shares under the Securities Act of 1933, as amended, and all
expenses in connection with maintaining facilities for the issue and transfer of
Shares and for supplying information, prices and other data to be furnished by
the Trust hereunder, and all expenses in connection with the preparation and
printing of the Trust's prospectuses and statements of additional information
for regulatory purposes and for distribution to shareholders; provided however,
that the Trust shall not pay any of the costs of advertising or promotion for
the sale of Shares.
1.6 The Trust agrees to execute any and all documents and to furnish any
and all information and otherwise use its best efforts to take all actions that
may be reasonably necessary in the discretion of the Trust' s officers in
connection with the qualification of Shares for sale in such states as you may
designate to the Trust and the Trust may approve, and the Trust agrees to pay
all expenses that may be incurred in connection with such qualification;
provided, however that the Trust shall not be required to qualify to do business
as a foreign corporation in any jurisdiction. You shall pay all expenses
connected with your own qualification as a dealer under state or Federal laws
and, except as otherwise specifically provided in this agreement, all other
expenses incurred by you in connection with the sale of Shares as contemplated
in this agreement.
1.7 The Trust shall furnish you from time to time, for use in connection
with the sale of Shares, such information with respect to the Trust or any
relevant Series and the Shares as you may reasonably request, all of which shall
be signed by one or more of the Trust's duly authorized officers; and the Trust
warrants that the statements contained in any such information, when so signed
by the Trust's officers, shall be true and correct. The Trust also shall furnish
you upon request with: (a) semi-annual reports and annual audited reports of the
Trust's books and accounts made by independent public accountants regularly
retained by the Trust, (b) quarterly earnings statements prepared by the Trust,
(c) a monthly itemized list of the securities in the Trust's or, if applicable,
each Series' portfolio, (d) monthly balance sheets as soon as practicable after
the end of each month, and (e) from time to time such additional information
regarding the Trust's financial condition as you may reasonably request.
1.8 The Trust represents to you that all registration statements and
prospectuses filed by the Trust with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, and under the 1940 Act, as
amended, with respect to the Shares have been carefully prepared in conformity
with the then-current requirements of said Acts and rules and regulations
<PAGE>
of the Securities and Exchange Commission thereunder. As used in this agreement
the terms "registration statement" and "prospectus" shall mean any registration
statement and prospectus, including the statement of additional information
incorporated by reference therein, filed with the Securities and Exchange
Commission and any amendments and supplements thereto that at any time shall
have been filed with said Commission. The Trust represents and warrants to you
that any registration statement and prospectus, when such registration statement
becomes effective, will contain all statements required to be stated therein in
conformity with said Acts and the rules and regulations of said Commission; that
all statements of fact contained in any such registration statement and
prospectus will be true and correct when such registration statement becomes
effective; and that neither any registration statement nor any prospectus when
such registration statement becomes effective will include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Trust may, but
shall not be obligated to, propose from time to time such amendment or
amendments to any registration statement and such supplement or supplements to
any prospectus as, in the light of future developments, may, in the opinion of
the Trust's counsel, be necessary or advisable. If the Trust shall not propose
such amendment or amendments and/or supplement or supplements within fifteen
days after receipt by the Trust of a written request from you to do so, you may,
at your option, terminate this agreement or decline to make offers of the
Trust's securities until such amendments are made. The Trust shall not file any
amendment to any registration statement or supplement to any prospectus without
giving you reasonable notice thereof in advance; provided, however, that nothing
contained in this agreement shall in any way limit the Trust's right to file at
any time such amendments to any registration statement and/or supplements to any
prospectus, of whatever character, as the Trust may deem advisable, such right
being in all respects absolute and unconditional.
1.9 The Trust authorizes you and any dealers with whom you have entered
into dealer agreements to use any prospectus in the then-current form furnished
by the Trust in connection with the sale of Shares. The Trust agrees to
indemnify, defend and hold you, your several officers and directors, and any
person who controls you within the meaning of Section 15 of the Securities Act
of 1933, as amended, free and harmless from and against any and all claims,
demands, liabilities and expenses (including the cost of investigating or
defending such claims, demands or liabilities and any counsel fees incurred in
connection therewith) which you, your officers and directors, or any such
controlling persons, may incur under the Securities Act of 1933, as amended, the
1940 Act, as amended, or common law or otherwise, arising out of or on the basis
of any untrue statement, or alleged untrue statement, of a material fact
required to be stated in either any registration statement or any prospectus or
any statement of additional information, or arising out of or based upon any
omission, or alleged omission, to state a material fact required to be stated in
any registration statement, any prospectus or any statement of additional
information or necessary to make the statements in any of them, in the light of
the circumstances under which they were made, not misleading, except that the
Trust's agreement to indemnify you, your officers or directors, and any such
controlling person will not be deemed to cover any such claim, demand, liability
or expense to the extent that it arises out of or is based upon any such untrue
statement, alleged untrue statement, omission or alleged omission made in any
registration statement, any prospectus or any statement of additional
information in reliance upon information furnished by you your officers,
directors or any such controlling person to the
<PAGE>
Trust or its representatives for use in the preparation thereof, and except that
the Trust's agreement to indemnify you and the Trust's representations and
warranties set out in paragraph 1.8 of this Agreement will not be deemed to
cover any liability to the Trust or its shareholders to which you would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of your duties, or by reason of your reckless
disregard of your obligations and duties under this Agreement ("Disqualifying
Conduct"). The Trust's agreement to indemnify you, your officers and directors,
and any such controlling person, as aforesaid, is expressly conditioned upon the
Trust being notified of any action brought against you, your officers or
directors, or any such controlling person, such notification to be given by
letter, by facsimile or by telegram addressed to the Trust at its address set
forth above within a reasonable period of time after the summons or other first
legal process shall have been served. The failure so to notify the Trust of any
such action shall not relieve the Trust from any liability that the Trust may
have to the person against whom such action is brought by reason of any such
untrue, or alleged untrue, statement or omission, or alleged omission, (i)
except to the extent the Trust's ability to defend such action has been
materially adversely affected by such failure, or (ii) otherwise than on account
of the Trust's indemnity agreement contained in this paragraph 1.9. The Trust
will be entitled to assume the defense of any suit brought to enforce any such
claim, demand or liability, but, in such case, such defense shall be conducted
by counsel of good standing chosen by the Trust and approved by you. In the
event the Trust elects to assume the defense of any such suit and retain counsel
of good standing approved by you, the defendant or defendants in such suit shall
bear the fees and expenses of any additional counsel retained by any of them but
in case the Trust does not elect to assume the defense of any such suit, the
Trust will reimburse you, your officers and directors, or the controlling person
or persons named as defendant or defendants in such suit, for the fees and
expenses of any counsel retained by you or them, subject to the right of the
Trust to assume the defense of such suit with counsel of good standing at any
time prior to the settlement or final determination thereof. The Trust' s
indemnification agreement contained in this paragraph 1.9 and the Trust's
representations and warranties in this Agreement shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
you, your officers and directors, or any controlling person, and shall survive
the delivery of any Shares. This agreement of indemnity will inure exclusively
to your benefit, to the benefit of your several officers and directors, and
their respective estates, and to the benefit of any controlling persons and
their successors. The Trust agrees promptly to notify you of the commencement of
any litigation or proceedings against the Trust or any of its officers or Board
members in connection with the issue and sale of Shares.
1.10 You agree to indemnify, defend and hold the Trust, its several
officers and Board members, and any person who controls the Trust within the
meaning of Section 15 of the Securities Act of 1933, as amended, free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which the
Trust, its officers or Board members, or any such controlling person, may incur
under the Securities Act of 1933, as amended, the 1940 Act, as amended, or under
common law or otherwise, but only to the extent that such liability or expense
incurred by the Trust, its officers or Board members, or such controlling person
resulting from such claims or demands, (a) shall arise out of or be based upon
any unauthorized sales literature, advertisements, information, statements or
representations or any Disqualifying Conduct in connection with the offering and
sale of any Shares, or (b) shall
<PAGE>
arise out of or be based upon any untrue, or alleged untrue, statement of a
material fact contained in information furnished in writing by you to the Trust
specifically for use in the Trust's registration statement and used in the
answers to any of the items of the registration statement or in the
corresponding statements made in the prospectus or statement of additional
information, or shall arise out of or be based upon any omission, or alleged
omission, to state a material fact in connection with such information furnished
in writing by you to the Trust and required to be stated in such answers or
necessary to make such information, in the light of the circumstances under
which it was made, not misleading. Your agreement to indemnify the Trust, its
officers and Board members, and any such controlling person, as aforesaid, is
expressly conditioned upon your being notified of any action brought against the
Trust, its officers or Board members, or any such controlling person, such
notification to be given by letter, by facsimile or by telegram addressed to you
at your address set forth above within a reasonable period of time after the
summons or other first legal process shall have been served. You shall have the
right to control the defense of such action, with counsel of your own choosing,
satisfactory to the Trust, if such action is based solely upon such alleged
misstatement or omission on your part, and in any other event the Trust, its
officers or Board members, or such controlling person shall each have the right
to participate in the defense or preparation of the defense of any such action.
The failure so to notify you of any such action shall not relieve you from any
liability that you may have to the Trust, its officers or Board members, or to
such controlling person by reason of any such untrue, or alleged untrue,
statement or omission, or alleged omission, (i) except to the extent your
ability to defend such action has been materially adversely affected by such
failure, or (ii) otherwise than on account of your indemnity agreement contained
in this paragraph 1.10. This agreement of indemnity will inure exclusively to
the Trust's benefit, to the benefit of the Trust' s officers and Board members,
and their respective estates, and to the benefit of any controlling persons and
their successors. You agree promptly to notify the Trust of the commencement of
any litigation or proceedings against you or any of your officers or directors
in connection with the issue and sale of Shares.
1.11 No Shares shall be offered by either you or the Trust under any of
the provisions of this agreement and no orders for the purchase or sale of such
Shares hereunder shall be accepted by the Trust if and so long as the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the
Securities Act of 1933, as amended, or if and so long as a current prospectus as
required by Section 10 of said Act, as amended, is not on file with the
Securities and Exchange Commission provided, however, that nothing contained in
this paragraph 1.11 shall in any way restrict or have an application to or
bearing upon the Trust's obligation to repurchase any Shares from any
shareholder in accordance with the provisions of the Trust's prospectus or
charter documents.
1.12 The Trust agrees to advise you immediately in writing:
(a) of any request by the Securities and Exchange Commission
for amendments to the registration statement or prospectus then in effect
or for additional information;
(b) in the event of the issuance by the Securities and
Exchange Commission of any stop order suspending the effectiveness of the
registration statement or prospectus then in effect or the initiation of
any proceeding for that purpose;
<PAGE>
(c) of the happening of any, event that in the judgment of the
Trust's Board of Trustees makes untrue any statement of a material fact
made in the registration statement or prospectus then in effect or that
requires the making of a change in such registration statement or
prospectus in order to make the statements therein not misleading in any
material respect; and
(d) of all declarations of effectiveness and other actions of
the Securities and Exchange Commission with respect to any amendments to
the registration statement or prospectus that may from time to time be
filed with the Securities and Exchange Commission.
2. Offering Price
Shares of any class or series of the Trust offered for sale by you shall
be offered at a price per share (the "offering price") equal to (a) the net
asset value (determined in the manner set forth in the Trust's charter
documents) plus (b) a sales charge, if any, and except to those persons set
forth in the then-current prospectus, which shall be the percentage of the
offering price of such Shares as set forth in the Trust's then-current
prospectus. The offering price, if not an exact multiple of one cent, shall be
adjusted to the nearest cent. In addition, Shares of any class of the Trust
offered for sale by you may be subject to a contingent deferred sales charge, to
the extent set forth in the Trust's then-current prospectus. You shall be
entitled to receive any sales charge or contingent deferred sales charge in
respect of the Shares. Any payments to dealers shall be governed by a separate
agreement between you and such dealer and the Trust's then-current prospectus.
3. Term
This Agreement shall become effective with respect to the Trust as of the
date hereof and will continue for an initial two-year term and will continue
thereafter so long as such continuance is specifically approved at least
annually (i) by the Trust's Board or (ii) by a vote of a majority (as defined in
the 1940 Act) of the Shares of the Trust or the relevant Series, as the case may
be, provided that in either event its continuance also is approved by a majority
of the Board members who are not "interested persons" (as defined in said Act)
of any party to this Agreement and who have no direct or indirect financial
interest in this Agreement, by vote cast in person at a meeting called for the
purpose of voting on such approval. This agreement is terminable with respect to
any Series or any Trust, without penalty, on not less than sixty days notice, by
the Trust's Board of Trustees, by vote of a majority (as defined in the 1940
Act) of the outstanding voting securities of such Trust, or by you. This
Agreement shall terminate automatically in the event of its "assignment" (as
defined in the 1940 Act).
4. Miscellaneous
4.1 The Trust recognizes that your directors, officers and employees may
from time to time serve as directors, trustees, officers and employees of
corporations and business trusts (including other investment companies), and
that you or your affiliates may enter into distribution or other agreements with
such other corporations and trusts.
<PAGE>
4.2 No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which an enforcement of the change, waiver, discharge or termination is
sought.
4.3 This Agreement shall be governed by the internal laws of the State of
New York without giving effect to principles of conflicts of laws.
4.4 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.
4.5 Funds Distributor, Inc. ("FDI") represents and warrants that it is a
member of the National Association of Securities Dealers ("NASD") and agrees to
abide by all of the rules and regulations of the NASD, including, without
limitation, its Conduct Rules. FDI agrees to comply with all applicable federal
and state laws, rules and regulations. FDI agrees to notify the Trust
immediately in the event of its expulsion or suspension by the NASD. Expulsion
of FDI by the NASD will automatically terminate this Agreement immediately
without notice. Suspension of FDI by the NASD will terminate this Agreement
effective immediately upon written notice of termination to FDI from the Trust.
4.6 All notices or other communications hereunder to either par-party
shall be in writing and shall be deemed sufficient if mailed to such party at
the address of such party set forth on page 1 of this Agreement or at such other
address as such party may be designated by written notice to the other, or by
telex, telecopier, telegram or similar means of same day delivery (with a
confirming copy by mail as provided herein).
<PAGE>
Please confirm that the foregoing is in accordance with your
understanding and indicate your acceptance hereof by signing below, whereupon it
shall become a binding agreement between us.
Very truly yours,
TD WATERHOUSE TRUST
By: ____________________________
Accepted:
FUNDS DISTRIBUTOR, INC.
By: ___________________________
<PAGE>
EXHIBIT A
Series of Funds
TD WATERHOUSE TRUST
TD Waterhouse Dow 30 Fund
Exhibit (e)(2)
FORM OF AGENCY SELLING AGREEMENT
Dear Sirs:
As the principal underwriter of shares of certain registered
investment companies presently or hereafter managed, advised or administered by
TD Waterhouse Asset Management, Inc., shares of which companies are distributed
by us at their respective net asset values plus sales charges as applicable,
pursuant to our Distribution Agreements with such companies (the "Funds"), we
invite you to participate as a non-exclusive agent in the distribution of shares
of any and all of the Funds upon the following terms and conditions:
1. You are to offer and sell such shares only at the public offering prices
that shall be currently in effect, in accordance with the terms of the
then current prospectuses and statements of additional information of the
Funds subject in each case to the delivery prior to or at the time of
such sales of the then current prospectus. You agree to act only as agent
in such transactions and nothing in this Agreement shall constitute
either of us the agent of the other or shall constitute you or the Fund
the agent of the other. In all transactions in these shares between you
and us, we are acting as agent for the Fund and not as principal. All
orders are subject to acceptance by us and become effective only upon
confirmation by us. We reserve the right in our sole discretion to reject
any order. The minimum dollar purchase of shares of the Funds shall be
the applicable minimum amounts described in the then current prospectuses
and statements of additional information and no order for less than such
amounts will be accepted.
2. On each purchase of shares by you from us, the total sales charges and
discount to selected dealer, if any, shall be as stated in each Fund's
then current prospectus.
Such sales charges and discount to selected dealers are subject to
reductions under a variety of circumstances as described in each Fund's
then current prospectus and statement of additional information. To
obtain these reductions, we must be notified when the sale takes place
which would qualify for the reduced charge.
There is no sales charge or discount to selected dealers on the
reinvestment of any dividends or distributions.
3. All purchases of shares of a Fund made under any cumulative purchase
privilege as set forth in a Fund's then current effective Prospectus
shall be considered an individual transaction for the purpose of
determining the concession from the public offering price to which you
are entitled as set forth in paragraph 2 hereof.
4. As an authorized agent to sell shares of the Fund, you agree to purchase
shares of the Funds only through us or from your customers. Purchases
through us shall be made only for your own investment purposes or for the
purpose of covering purchase orders already received
<PAGE>
from your customers, and we agree that we will not place orders for the
purchase of shares from a Fund except to cover purchase orders already
received by us. Purchases from your customers shall be at a price not
less than the net asset value quoted by each such Fund at the time of
such purchase. Nothing herein contained shall prevent you from selling
any shares of a Fund for the account of a record holder to us or to such
Fund at the net asset value quoted by us and charging your customer a
fair commission for handling the transaction.
5. You agree that you will not withhold placing customers' orders so as to
profit yourself as a result of such withholding.
6. You agree to sell shares of the Funds only (a) to your customers at the
public offering prices then in effect or (b) to us as agent for the Funds
or to each such Fund itself at the redemption price, as described in each
Fund's then current effective Prospectus.
7. Settlement shall be made promptly, but in no case later than the time
customary for such payments after our acceptance of the order or, if so
specified by you, we will make delivery by draft on you, the amount of
which draft you agree to pay on presentation to you. If payment is not so
received or made, the right is reserved forthwith to cancel the sale or
at our option to resell the shares to the applicable Fund, at the then
prevailing net asset value in which latter case you agree to be
responsible for any loss resulting to such Fund or to us from your
failure to make payment as aforesaid.
8. If any shares sold to you under the terms of this Agreement are
repurchased by a Fund or by us as agent, or purchased for the account of
that Fund or tendered to that Fund for purchase at liquidating value
under the terms of the Articles of Incorporation or other document
governing such Fund within seven (7) business days after the date of
confirmation to you of your original purchase order therefor, you agree
to pay forthwith to us the full amount of the concession allowed to you
on the original sale and we agree to pay such amount to the Fund when
received by us. We shall notify you of such repurchase within ten (10)
days of the effective date of such repurchase.
9. All sales will be subject to receipt of shares by us from the Funds. We
reserve the right in our discretion, without notice to you, to suspend
sales or withdraw the offering of shares entirely, or to modify or cancel
this Agreement.
10. No person is authorized to make any representations concerning the Funds
or shares of the Funds except those contained in each Fund's then current
effective Prospectus or Statement of Additional Information and any such
information as may be released by a Fund as information supplemental to
such Prospectus or Statement of Additional Information. In purchasing
shares through us you shall rely solely on the representations contained
in each Fund's then current effective Prospectus or Statement of
Additional Information and above-mentioned supplemental information.
11. Additional copies of each such Prospectus or Statement of Additional
Information and any printed information issued as supplemental to each
such Prospectus or Statement of
<PAGE>
Additional Information will be supplied by us to you and your selling
agents in reasonable quantities upon request.
12. We, our affiliates and the Funds shall not be liable for any losses,
expenses, damages, costs or other claims arising out of any redemption or
exchange pursuant to telephone instructions from any person, or our
refusal to execute such instructions for any reason.
13. All notices or other communications hereunder to either party shall be in
writing and shall be deemed sufficient if mailed to such party at the
address of such party set forth on page 4 of this Agreement or at such
other address as such party may be designated by written notice to the
other, or by telex, telecopier, telegram or similar means of same day
delivery (with a confirming copy by mail as provided herein).
14. This Agreement may be terminated upon written notice by either party at
any time, and shall automatically terminate upon its attempted assignment
by you, whether by operation of law or otherwise, or by us otherwise than
by operation of law.
15. By accepting this Agreement, you represent that you are registered as a
broker-dealer under the Securities Exchange Act of 1934, are qualified to
act as a broker or dealer in the states or other jurisdictions where you
transact business, and are a member in good standing of the National
Association of Securities Dealers, Inc., and you agree that you will
maintain such registrations, qualifications, and membership in good
standing and in full force and effect throughout the term of this
Agreement. You further agree to comply with all applicable Federal laws,
the laws of the states or other jurisdictions concerned, and the rules
and regulations promulgated thereunder and with the Constitution, By-Laws
and Conduct Rules of the National Association of Securities Dealers,
Inc., and that you will not offer or sell shares of the Funds in any
state or jurisdiction where they may not lawfully be offered and/or sold.
If you are offering and selling shares of the Funds in jurisdictions
outside the several states, territories, and possessions of the United
States and are not otherwise required to be registered, qualified, or a
member of the National Association of Securities Dealers, Inc., as set
forth above you, you nevertheless agree to observe the applicable laws of
the jurisdiction in which such offer and/or sale is made, to comply with
the full disclosure requirements of the Securities Act of 1933 and the
regulations promulgated thereunder, to conduct your business in
accordance with the spirit of the Conduct Rules of the National
Association of Securities Dealers, Inc. You agree to indemnify and hold
the Funds, their investment advisor, and us harmless from loss or damage
resulting from any failure on your part to comply with applicable laws.
16. You agree to maintain records of all sales of shares made through you and
to furnish us with copies of each record on request.
17. This Agreement and all amendments to this Agreement shall take effect
with respect to and on the date of any orders placed by you after the
date set forth below or, as applicable, after the date of the notice of
amendment sent to you by the undersigned.
<PAGE>
18. This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts and shall be binding upon both parties
hereto when signed and accepted by you in the space provided below.
FOR: FUNDS DISTRIBUTOR, INC.
60 STATE STREET, SUITE 1300
BOSTON, MA 02109
- ---------------------------- ---------------
By: Date
FOR:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Address of Principal Office
- --------------------------------------------------------------------------------
City State Zip Code
BY: Its:
- -------------------------------- --------------------- --------------
Authorized Signature Title Date
- -------------------------------
Print Name
Exhibit (g)(1)
FORM OF CUSTODY AGREEMENT
Agreement made as of this ___ day of November, 1999, between TD
WATERHOUSE TRUST, a business trust organized and existing under the laws of the
State of Delaware, having its principal office and place of business at 100 Wall
Street, New York, New York 10005 (hereinafter called the "Trust"), and THE BANK
OF NEW YORK, a New York corporation authorized to do a banking business, having
its principal office and place of business at 48 Wall Street, New York, New York
10286 (hereinafter called the "Custodian").
W I T N E S S E T H :
that for and in consideration of the mutual promises hereinafter set forth, the
Trust and the Custodian agree as follows:
ARTICLE I.DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
1. "Authorized Persons" shall be deemed to include any person, whether
or not such person is an officer or employee of the Trust, duly authorized by
the Board of Trustees of the Trust to execute any Certificate, instruction,
notice or other instrument on behalf of the Trust and listed in the Certificate
annexed hereto as Appendix A or such other Certificate as may be received by the
Custodian from time to time.
2. "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency securities, its successor
or successors and its nominee or nominees.
3. "Call Option" shall mean an exchange traded option with respect to
Securities other than Stock Index Options, Futures Contracts, and Futures
Contract Options entitling the holder, upon timely exercise and payment of the
exercise price, as specified therein, to purchase from the writer thereof the
specified underlying Securities.
4. "Certificate" shall mean any notice, instruction, or other
instrument in writing, authorized or required by this Agreement to be given to
the Custodian which is actually received by the Custodian and signed on behalf
of the Trust by any two officers or other authorized signatories of the Trust,
and the term Certificate shall also include instructions by the Trust to the
Custodian communicated by a Terminal Link.
5. "Clearing Member" shall mean a registered broker-dealer which is a
clearing member under the rules of O.C.C. and a member of a national securities
exchange qualified to act as a custodian for an investment company, or any
broker-dealer reasonably believed by the Custodian to be such a clearing member.
6. "Collateral Account" shall mean a segregated account so denominated
which is specifically allocated to a Series and pledged to the Custodian as
security for, and in consideration of, the Custodian's issuance of (a) any Put
Option guarantee letter or similar document described in paragraph 8 of Article
V herein, or (b) any receipt described in Article V or VIII herein.
<PAGE>
7. "Composite Currency Unit" shall mean the European Currency Unit or
any other composite unit consisting of the aggregate of specified amounts of
specified Currencies as such unit may be constituted from time to time.
8. "Covered Call Option" shall mean an exchange traded option entitling
the holder, upon timely exercise and payment of the exercise price, as specified
therein, to purchase from the writer thereof the specified underlying Securities
(excluding Futures Contracts) which are owned by the writer thereof and subject
to appropriate restrictions.
9. "Currency" shall mean money denominated in a lawful currency of any
country or the European Currency Unit.
10. "Depository" shall mean The Depository Trust Company ("DTC"), a
clearing agency registered with the Securities and Exchange Commission, its
successor or successors and its nominee or nominees. The term "Depository" shall
further mean and include any other person authorized to act as a depository
under the Investment Company Act of 1940, its successor or successors and its
nominee or nominees, specifically identified in a certified copy of a resolution
of the Trust's Board of Trustees specifically approving deposits therein by the
Custodian.
11. "Financial Futures Contract" shall mean the firm commitment to buy
or sell fixed income securities including, without limitation, U.S. Treasury
Bills, U.S. Treasury Notes, U.S. Treasury Bonds, domestic bank certificates of
deposit, and Eurodollar certificates of deposit, during a specified month at an
agreed upon price.
12. "Futures Contract" shall mean a Financial Futures Contract and/or
Stock Index Futures Contracts.
13. "Futures Contract Option" shall mean an option with respect to a
Futures Contract.
14. "FX Transaction" shall mean any transaction for the purchase by one
party of an agreed amount in one Currency against the sale by it to the other
party of an agreed amount in another Currency.
<PAGE>
15. "Instructions" shall mean instructions communications transmitted
by electronic or telecommunications media including S.W.I.F.T.,
computer-to-computer interface, dedicated transmission line, facsimile
transmission (which may be signed by an Authorized Person or unsigned) and
tested telex.
16. "Margin Account" shall mean a segregated account in the name of a
broker, dealer, futures commission merchant, or a Clearing Member, or in the
name of the Trust for the benefit of a broker, dealer, futures commission
merchant, or Clearing Member, or otherwise, in accordance with an agreement
between the Trust, the Custodian and a broker, dealer, futures commission
merchant or a Clearing Member (a "Margin Account Agreement"), separate and
distinct from the custody account, in which certain Securities and/or money of
the Trust shall be deposited and withdrawn from time to time in connection with
such transactions as the Trust may from time to time determine. Securities held
in the Book-Entry System or the Depository shall be deemed to have been
deposited in, or withdrawn from, a Margin Account upon the Custodian's effecting
an appropriate entry in its books and records.
17. "Money Market Security" shall be deemed to include, without
limitation, certain Reverse Repurchase Agreements, debt obligations issued or
guaranteed as to interest and principal by the government of the United States
or agencies or instrumentalities thereof, any tax, bond or revenue anticipation
note issued by any state or municipal government or public authority, commercial
paper, certificates of deposit and bankers' acceptances, repurchase
<PAGE>
agreements with respect to the same and bank time deposits, where the purchase
and sale of such securities normally requires settlement in federal funds on the
same day as such purchase or sale.
18. "O.C.C." shall mean the Options Clearing Corporation, a clearing
agency registered under Section 17A of the Securities Exchange Act of 1934, its
successor or successors, and its nominee or nominees.
19. "Option" shall mean a Call Option, Covered Call Option, Stock Index
Option and/or a Put Option.
20. "Oral Instructions" shall mean verbal instructions actually
received by the Custodian from an Authorized Person or from a person reasonably
believed by the Custodian to be an Authorized Person.
21. "Put Option" shall mean an exchange traded option with respect to
Securities other than Stock Index Options, Futures Contracts, and Futures
Contract Options entitling the holder, upon timely exercise and tender of the
specified underlying Securities, to sell such Securities to the writer thereof
for the exercise price.
22. "Reverse Repurchase Agreement" shall mean an agreement pursuant to
which the Trust sells Securities and agrees to repurchase such Securities at a
described or specified date and price.
<PAGE>
23. "Security" shall be deemed to include, without limitation, Money
Market Securities, Call Options, Put Options, Stock Index Options, Stock Index
Futures Contracts, Stock Index Futures Contract Options, Financial Futures
Contracts, Financial Futures Contract Options, Reverse Repurchase Agreements,
common stocks and other securities having characteristics similar to common
stocks, preferred stocks, debt obligations issued by state or municipal
governments and by public authorities, (including, without limitation, general
obligation bonds, revenue bonds, industrial bonds and industrial development
bonds), bonds, debentures, notes, mortgages or other obligations, and any
certificates, receipts, warrants or other instruments representing rights to
receive, purchase, sell or subscribe for the same, or evidencing or representing
any other rights or interest therein, or any property or assets.
24. "Senior Security Account" shall mean an account maintained and
specifically allocated to a Series under the terms of this Agreement as a
segregated account, by recordation or otherwise, within the custody account in
which certain Securities and/or other assets of the Trust specifically allocated
to such Series shall be deposited and withdrawn from time to time in accordance
with Certificates received by the Custodian in connection with such transactions
as the Trust may from time to time determine.
25. "Series" shall mean the various portfolios, if any, of the Trust
listed on Appendix B hereto as amended from time to time.
26. "Shares" shall mean the shares of beneficial interest of the Trust,
each of which is, in the case of a Trust having Series, allocated to a
particular Series.
27. "Stock Index Futures Contract" shall mean a bilateral agreement
pursuant to which the parties agree to take or make delivery of an amount of
cash equal to a specified dollar amount times the difference between the value
of a particular stock index at the close of the last business day of the
contract and the price at which the futures contract is originally struck.
28. "Stock Index Option" shall mean an exchange traded option entitling
the holder, upon timely exercise, to receive an amount of cash determined by
reference to the difference between the exercise price and the value of the
index on the date of exercise.
ARTICLE II.
APPOINTMENT OF CUSTODIAN
1. The Trust hereby constitutes and appoints the Custodian as custodian
of the Securities and money at any time owned by the Trust during the period of
this Agreement.
2. The Custodian hereby accepts appointment as such custodian and
agrees to perform the duties thereof as hereinafter set forth.
<PAGE>
ARTICLE III.CUSTODY OF CASH AND SECURITIES
1. Except as otherwise provided in paragraph 7 of this Article and in
Article VIII, the Trust will deliver or cause to be delivered to the Custodian
all Securities and all money owned by it, at any time during the period of this
Agreement, and shall specify with respect to such Securities and money the
Series to which the same are specifically allocated. The Custodian shall
segregate, keep and maintain the assets of the Series separate and apart. The
Custodian will not be responsible for any Securities and money not actually
received by it. The Custodian will be entitled to reverse any credits made on
the Trust's behalf where such credits have been previously made and money is not
finally collected. The Trust shall deliver to the Custodian a certified
resolution of the Board of Trustees of the Trust, substantially in the form of
Exhibit A hereto, approving, authorizing and instructing the Custodian on a
continuous and on-going basis to deposit in the Book-Entry System all Securities
eligible for deposit therein, regardless of the Series to which the same are
specifically allocated and to utilize the Book-Entry System to the extent
possible in connection with its performance hereunder, including, without
limitation, in connection with settlements of purchases and sales of Securities,
loans of Securities and deliveries and returns of Securities collateral. Prior
to a deposit of Securities specifically allocated to a Series in the Depository,
the Trust shall deliver to the Custodian a certified resolution of the Board of
Trustees of the Trust, substantially in the form of Exhibit B hereto, approving,
authorizing and instructing the Custodian on a continuous and ongoing basis
until instructed to the contrary by a Certificate actually received by the
Custodian to deposit in the Depository all Securities specifically allocated to
such Series eligible for deposit therein, and to utilize the Depository to the
extent possible with respect to such Securities in connection with its
performance hereunder, including, without limitation, in connection with
settlements of purchases and sales of Securities, loans of Securities, and
deliveries and returns of Securities collateral. Securities and money deposited
in either the Book-Entry System or the Depository will be represented in
accounts which include only assets held by the Custodian for customers,
including, but not limited to, accounts in which the Custodian acts in a
fiduciary or representative capacity and will be specifically allocated on the
Custodian's books to the separate account for the applicable Series. Prior to
the Custodian's accepting, utilizing and acting with respect to Clearing Member
confirmations for Options and transactions in Options for a Series as provided
in this Agreement, the Custodian shall have received a certified resolution of
the Trust's Board of Trustees, substantially in the form of Exhibit C hereto,
approving, authorizing and instructing the Custodian on a continuous and
on-going basis, until instructed to the contrary by a Certificate actually
received by the Custodian, to accept, utilize and act in accordance with such
confirmations as provided in this Agreement with respect to such Series.
2. The Custodian shall establish and maintain separate accounts, in the
name of each Series, and shall credit to the separate account for each Series
all money received by it for the account of the Trust with respect to such
Series. Money credited to a separate account for a Series shall be disbursed by
the Custodian only:
(a) as hereinafter provided;
(b) pursuant to Certificates setting forth the name and
address of the person to whom the payment is to be made, the Series account from
which payment is to be made and the purpose for which payment is to be made; or
(c) in payment of the fees and in reimbursement of the
expenses and liabilities of the Custodian attributable to such Series.
<PAGE>
3. Promptly after the close of business on each day, the Custodian
shall furnish the Trust with confirmations and a summary, on a per Series basis,
of all transfers to or from the account of the Trust for a Series, either
hereunder or with any co-custodian or sub-custodian appointed in accordance with
this Agreement during said day. Where Securities are transferred to the account
of the Trust for a Series, the Custodian shall also by book-entry or otherwise
identify as belonging to such Series a quantity of Securities in a fungible bulk
of Securities registered in the name of the Custodian (or its nominee) or shown
on the Custodian's account on the books of the Book-Entry System or the
Depository. At least monthly and from time to time, the Custodian shall furnish
the Trust with a detailed statement, on a per Series basis, of the Securities
and money held by the Custodian for the Trust.
4. Except as otherwise provided in paragraph 7 of this Article and in
Article VIII, all Securities held by the Custodian hereunder, which are issued
or issuable only in bearer form, except such Securities as are held in the
Book-Entry System, shall be held by the Custodian in that form; all other
Securities held hereunder may be registered in the name of the Trust, in the
name of any duly appointed registered nominee of the Custodian as the Custodian
may from time to time determine, or in the name of the Book-Entry System or the
Depository or their successor or successors, or their nominee or nominees. The
Trust agrees to furnish to the Custodian appropriate instruments to enable the
Custodian to hold or deliver in proper form for transfer, or to register in the
name of its registered nominee or in the name of the Book-Entry System or the
Depository any Securities which it may hold hereunder and which may from time to
time be registered in the name of the Trust. The Custodian shall hold all such
Securities specifically allocated to a Series which are not held in the
Book-Entry System or in the Depository in a separate account in the name of such
Series physically segregated at all times from those of any other person or
persons.
5. Except as otherwise provided in this Agreement and unless otherwise
instructed to the contrary by a Certificate, the Custodian by itself, or through
the use of the Book-Entry System or the Depository with respect to Securities
held hereunder and therein deposited, shall with respect to all Securities held
for the Trust hereunder in accordance with preceding paragraph 4:
(a) collect all income, dividends and distributions due or
payable;
(b) give notice to the Trust and present payment and collect
the amount payable upon such Securities which are called, but only if either (i)
the Custodian receives a written notice of such call, or (ii) notice of such
call appears in one or more of the publications listed in Appendix C annexed
hereto, which may be amended at any time by the Custodian without the prior
notification or consent of the Trust;
(c) present for payment and collect the amount payable upon
all Securities which mature;
(d) surrender Securities in temporary form for definitive
Securities;
<PAGE>
(e) execute, as custodian, any necessary declarations or
certificates of ownership under the Federal Income Tax Laws or the laws or
regulations of any other taxing authority now or hereafter in effect;
(f) hold directly, or through the Book-Entry System or the
Depository with respect to Securities therein deposited, for the account of a
Series, all rights and similar securities issued with respect to any Securities
held by the Custodian for such Series hereunder; and
(g) deliver to the Trust all notices, proxies, proxy
soliciting materials, consents and other written information (including, without
limitation, notices of tender offers and exchange offers, pendency of calls,
maturities of Securities and expiration of rights) relating to Securities held
pursuant to this Agrement which are actually received by the Custodian, such
proxies and other similar materials to be executed by the registered owner (if
Securities are registered otherwise than in the name of the Trust), but without
indicating the manner in which proxies or consents are to be voted.
6. Upon receipt of a Certificate and not otherwise, the Custodian,
directly or through the use of the Book-Entry System or the Depository, shall:
(a) execute and deliver to such persons as may be designated
in such Certificate proxies, consents, authorizations, and any other instruments
whereby the authority of the Trust as owner of any Securities held by the
Custodian hereunder for the Series specified in such Certificate may be
exercised;
(b) deliver any Securities held by the Custodian hereunder for
the Series specified in such Certificate in exchange for other Securities or
cash issued or paid in connection with the liquidation, reorganization,
refinancing, merger, consolidation or recapitalization of any corporation, or
the exercise of any conversion privilege and receive and hold hereunder
specifically allocated to such Series any cash or other Securities received in
exchange;
(c) deliver any Securities held by the Custodian hereunder for
the Series specified in such Certificate to any protective committee,
reorganization committee or other person in connection with the reorganization,
refinancing, merger, consolidation, recapitalization or sale of assets of any
corporation, and receive and hold hereunder specifically allocated to such
Series such certificates of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such delivery;
(d) make such transfers or exchanges of the assets of the
Series specified in such Certificate, and take such other steps as shall be
stated in such Certificate to be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization, merger, consolidation or
recapitalization of the Trust; and
(e) present for payment and collect the amount payable upon
Securities not described in preceding paragraph 5(b) of this Article which may
be called as specified in the Certificate.
<PAGE>
7. Notwithstanding any provision elsewhere contained herein, the
Custodian shall not be required to obtain possession of any instrument or
certificate representing any Futures Contract, any Option, or any Futures
Contract Option until after it shall have determined, or shall have received a
Certificate from the Trust stating, that any such instruments or certificates
are available. The Trust shall deliver to the Custodian such a Certificate no
later than the business day preceding the availability of any such instrument or
certificate. Prior to such availability, the Custodian shall comply with Section
17(f) of the Investment Company Act of 1940, as amended, in connection with the
purchase, sale, settlement, closing out or writing of Futures Contracts,
Options, or Futures Contract Options by making payments or deliveries specified
in Certificates received by the Custodian in connection with any such purchase,
sale, writing, settlement or closing out upon its receipt from a broker, dealer,
or futures commission merchant of a statement or confirmation reasonably
believed by the Custodian to be in the form customarily used by brokers,
dealers, or futures commission merchants with respect to such Futures Contracts,
Options, or Futures Contract Options, as the case may be, confirming that such
Security is held by such broker, dealer or futures commission merchant, in
book-entry form or otherwise, in the name of the Custodian (or any nominee of
the Custodian) as custodian for the Trust, provided, however, that
notwithstanding the foregoing, payments to or deliveries from the Margin
Account, and payments with respect to Securities to which a Margin Account
relates, shall be made in accordance with the terms and conditions of the Margin
Account Agreement. Whenever any such instruments or certificates are available,
the Custodian shall, notwithstanding any provision in this Agreement to the
contrary, make payment for any Futures Contract, Option, or Futures Contract
Option for which such instruments or such certificates are available only
against the delivery to the Custodian of such instrument or such certificate,
and deliver any Futures Contract, Option or Futures Contract Option for which
such instruments or such certificates are available only against receipt by the
Custodian of payment therefor. Any such instrument or certificate delivered to
the Custodian shall be held by the Custodian hereunder in accordance with, and
subject to, the provisions of this Agreement.
ARTICLE IV.
PURCHASE AND SALE OF INVESTMENTS OF THE TRUSTOTHER THAN OPTIONS, FUTURES
CONTRACTS AND FUTURES CONTRACT OPTIONS
1. Promptly after each purchase of Securities by the Trust, other than
a purchase of an Option, a Futures Contract, or a Futures Contract Option, the
Trust shall deliver to the Custodian (i) with respect to each purchase of
Securities which are not Money Market Securities, a Certificate, and (ii) with
respect to each purchase of Money Market Securities, a Certificate or Oral
Instructions, specifying with respect to each such purchase: (a) the Series to
which such Securities are to be specifically allocated; (b) the name of the
issuer and the title of the Securities; (c) the number of shares or the
principal amount purchased and accrued interest, if any; (d) the date of
purchase and settlement; (e) the purchase price per unit; (f) the total amount
payable upon such purchase; (g) the name of the person from whom or the broker
through whom the purchase was made, and the name of the clearing broker, if any;
and (h) the name of the broker to whom payment is to be made. The Custodian
shall, upon receipt of Securities purchased by or for the Trust, pay to the
broker specified in the Certificate out of the money held for the account of
such Series the total amount payable upon such purchase, provided that the same
conforms to the total amount payable as set forth in such Certificate or Oral
Instructions.
2. Promptly after each sale of Securities by the Trust, other than a
sale of any Option, Futures Contract, Futures Contract Option, or any Reverse
Repurchase Agreement, the Trust shall deliver to the Custodian (i) with respect
to each sale of Securities which are not Money Market Securities, a Certificate,
and (ii) with respect to each sale of Money Market Securities, a Certificate or
Oral Instructions, specifying with respect to each such sale: (a) the Series to
which such Securities were specifically allocated; (b) the name of the issuer
and the title of the Security; (c) the number of shares or principal amount
sold, and accrued interest, if any; (d) the date of sale; (e) the sale price per
unit; (f) the total amount payable to the Trust upon such sale; (g) the name of
the broker through whom or the person to whom the sale was made, and the name of
the clearing broker, if any; and (h) the name of the broker to whom the
Securities are to be delivered. The Custodian shall deliver the Securities
specifically allocated to
<PAGE>
such Series to the broker specified in the Certificate against payment of the
total amount payable to the Trust upon such sale, provided that the same
conforms to the total amount payable as set forth in such Certificate or Oral
Instructions.
ARTICLE V.OPTIONS
1. Promptly after the purchase of any Option by the Trust, the Trust shall
deliver to the Custodian a Certificate specifying with respect to each Option
purchased: (a) the Series to which such Option is specifically allocated; (b)
the type of Option (put or call); (c) the name of the issuer and the title and
number of shares subject to such Option or, in the case of a Stock Index Option,
the stock index to which such Option relates and the number of Stock Index
Options purchased; (d) the expiration date; (e) the exercise price; (f) the
dates of purchase and settlement; (g) the total amount payable by the Trust in
connection with such purchase; (h) the name of the Clearing Member through whom
such Option was purchased; and (i) the name of the broker to whom payment is to
be made. The Custodian shall pay, upon receipt of a Clearing Member's statement
confirming the purchase of such Option held by such Clearing Member for the
account of the Custodian (or any duly appointed and registered nominee of the
Custodian) as custodian for the Trust, out of money held for the account of the
Series to which such Option is to be specifically allocated, the total amount
payable upon such purchase to the Clearing Member through whom the purchase was
made, provided that the same conforms to the total amount payable as set forth
in such Certificate.
2. Promptly after the sale of any Option purchased by the Trust
pursuant to paragraph 1 hereof, the Trust shall deliver to the Custodian a
Certificate specifying with respect to each such sale: (a) the Series to which
such Option was specifically allocated; (b) the type of Option (put or call);
(c) the name of the issuer and the title and number of shares subject to such
Option or, in the case of a Stock Index Option, the stock index to which such
Option relates and the number of Stock Index Options sold; (d) the date of sale;
(e) the sale price; (f) the date of settlement; (g) the total amount payable to
the Trust upon such sale; and (h) the name of the Clearing Member through whom
the sale was made. The Custodian shall consent to the delivery of the Option
sold by the Clearing Member which previously supplied the confirmation described
in preceding paragraph 1 of this Article with respect to such Option against
payment to the Custodian of the total amount payable to the Trust, provided that
the same conforms to the total amount payable as set forth in such Certificate.
<PAGE>
3. Promptly after the exercise by the Trust of any Call Option
purchased by the Trust pursuant to paragraph 1 hereof, the Trust shall deliver
to the Custodian a Certificate specifying with respect to such Call Option: (a)
the Series to which such Call Option was specifically allocated; (b) the name of
the issuer and the title and number of shares subject to the Call Option; (c)
the expiration date; (d) the date of exercise and settlement; (e) the exercise
price per share; (f) the total amount to be paid by the Trust upon such
exercise; and (g) the name of the Clearing Member through whom such Call Option
was exercised. The Custodian shall, upon receipt of the Securities underlying
the Call Option which was exercised, pay out of the money held for the account
of the Series to which such Call Option was specifically allocated the total
amount payable to the Clearing Member through whom the Call Option was
exercised, provided that the same conforms to the total amount payable as set
forth in such Certificate.
4. Promptly after the exercise by the Trust of any Put Option purchased
by the Trust pursuant to paragraph 1 hereof, the Trust shall deliver to the
Custodian a Certificate specifying with respect to such Put Option: (a) the
Series to which such Put Option was specifically allocated; (b) the name of the
issuer and the title and number of shares subject to the Put Option; (c) the
expiration date; (d) the date of exercise and settlement; (e) the exercise price
per share; (f) the total amount to be paid to the Trust upon such exercise; and
(g) the name of the Clearing Member through whom such Put Option was exercised.
The Custodian shall, upon receipt of the amount payable upon the exercise of the
Put Option, deliver or direct the Depository to deliver the Securities
specifically allocated to such Series, provided the same conforms to the amount
payable to the Trust as set forth in such Certificate.
5. Promptly after the exercise by the Trust of any Stock Index Option
purchased by the Trust pursuant to paragraph 1 hereof, the Trust shall deliver
to the Custodian a Certificate specifying with respect to such Stock Index
Option: (a) the Series to which such Stock Index Option was specifically
allocated; (b) the type of Stock Index Option (put or call); (c) the number of
Options being exercised; (d) the stock index to which such Option relates; (e)
the expiration date; (f) the exercise price; (g) the total amount to be received
by the Trust in connection with such exercise; and (h) the Clearing Member from
whom such payment is to be received.
6. Whenever the Trust writes a Covered Call Option, the Trust shall
promptly deliver to the Custodian a Certificate specifying with respect to such
Covered Call Option: (a) the Series for which such Covered Call Option was
written; (b) the name of the issuer and the title and number of shares for which
the Covered Call Option was written and which underlie the same; (c) the
expiration date; (d) the exercise price; (e) the premium to be received by the
Trust; (f) the date such Covered Call Option was written; and (g) the name of
the Clearing Member through whom the premium is to be received. The Custodian
shall deliver or cause to be delivered, in exchange for receipt of the premium
specified in the Certificate with respect to such Covered Call Option, such
receipts as are required in accordance with the customs prevailing among
Clearing Members dealing in Covered Call Options and shall impose, or direct the
Depository to impose, upon the underlying Securities specified in the
Certificate specifically allocated to such Series such restrictions as may be
required by such receipts. Notwithstanding the foregoing, the Custodian has the
right, upon prior written notification to the Trust, at any time to refuse to
issue any receipts for Securities in the possession of the Custodian and not
deposited with the Depository underlying a Covered Call Option.
<PAGE>
7. Whenever a Covered Call Option written by the Trust and described in
the preceding paragraph of this Article is exercised, the Trust shall promptly
deliver to the Custodian a Certificate instructing the Custodian to deliver, or
to direct the Depository to deliver, the Securities subject to such Covered Call
Option and specifying: (a) the Series for which such Covered Call Option was
written; (b) the name of the issuer and the title and number of shares subject
to the Covered Call Option; (c) the Clearing Member to whom the underlying
Securities are to be delivered; and (d) the total amount payable to the Trust
upon such delivery. Upon the return and/or cancellation of any receipts
delivered pursuant to paragraph 6 of this Article, the Custodian shall deliver,
or direct the Depository to deliver, the underlying Securities as specified in
the Certificate against payment of the amount to be received as set forth in
such Certificate.
8. Whenever the Trust writes a Put Option, the Trust shall promptly
deliver to the Custodian a Certificate specifying with respect to such Put
Option: (a) the Series for which such Put Option was written; (b) the name of
the issuer and the title and number of shares for which the Put Option is
written and which underlie the same; (c) the expiration date; (d) the exercise
price; (e) the premium to be received by the Trust; (f) the date such Put Option
is written; (g) the name of the Clearing Member through whom the premium is to
be received and to whom a Put
<PAGE>
Option guarantee letter is to be delivered; (h) the amount of cash, and/or the
amount and kind of Securities, if any, specifically allocated to such Series to
be deposited in the Senior Security Account for such Series; and (i) the amount
of cash and/or the amount and kind of Securities specifically allocated to such
Series to be deposited into the Collateral Account for such Series. The
Custodian shall, after making the deposits into the Collateral Account specified
in the Certificate, issue a Put Option guarantee letter substantially in the
form utilized by the Custodian on the date hereof, and deliver the same to the
Clearing Member specified in the Certificate against receipt of the premium
specified in said Certificate. Notwithstanding the foregoing, the Custodian
shall be under no obligation to issue any Put Option guarantee letter or similar
document if it is unable to make any of the representations contained therein.
9. Whenever a Put Option written by the Trust and described in the
preceding paragraph is exercised, the Trust shall promptly deliver to the
Custodian a Certificate specifying: (a) the Series to which such Put Option was
written; (b) the name of the issuer and title and number of shares subject to
the Put Option; (c) the Clearing Member from whom the underlying Securities are
to be received; (d) the total amount payable by the Trust upon such delivery;
(e) the amount of cash and/or the amount and kind of Securities specifically
allocated to such Series to be withdrawn from the Collateral Account for such
Series and (f) the amount of cash and/or the amount and kind of Securities,
specifically allocated to such Series, if any, to be withdrawn from the Senior
Security Account. Upon the return and/or cancellation of any Put Option
guarantee letter or similar document issued by the Custodian in connection with
such Put Option, the Custodian shall pay out of the money held for the account
of the Series to which such Put Option was specifically allocated the total
amount payable to the Clearing Member specified in the Certificate as set forth
in such Certificate against delivery of such Securities, and shall make the
withdrawals specified in such Certificate.
10. Whenever the Trust writes a Stock Index Option, the Trust shall
promptly deliver to the Custodian a Certificate specifying with respect to such
Stock Index Option: (a) the Series for which such Stock Index Option was
written; (b) whether such Stock Index Option is a put or a call; (c) the number
of options written; (d) the stock index to which such Option relates; (e) the
expiration date; (f) the exercise price; (g) the Clearing Member through whom
such Option was written; (h) the premium to be received by the Trust; (i) the
amount of cash and/or the amount and kind of Securities, if any, specifically
allocated to such Series to be deposited in the Senior Security Account for such
Series; (j) the amount of cash and/or the amount and kind of Securities, if any,
specifically allocated to such Series to be deposited in the Collateral Account
for such Series; and (k) the amount of cash and/or the amount and kind of
Securities, if any, specifically allocated to such Series to be deposited in a
Margin Account, and the name in which such account is to be or has been
established. The Custodian shall, upon receipt of the premium specified in the
Certificate, make the deposits, if any, into the Senior Security Account
specified in the Certificate, and either (1) deliver such receipts, if any,
which the Custodian has specifically agreed to issue, which are in accordance
with the customs prevailing among Clearing Members in Stock Index Options and
make the deposits into the Collateral Account specified in the Certificate, or
(2) make the deposits into the Margin Account specified in the Certificate.
11. Whenever a Stock Index Option written by the Trust and described in
the preceding paragraph of this Article is exercised, the Trust shall promptly
deliver to the Custodian a Certificate specifying with respect to such Stock
Index Option: (a) the Series for which such Stock Index Option was written; (b)
such information as may be necessary to identify the Stock Index Option being
exercised; (c) the Clearing Member through whom such Stock Index Option
<PAGE>
is being exercised; (d) the total amount payable upon such exercise, and whether
such amount is to be paid by or to the Trust; (e) the amount of cash and/or
amount and kind of Securities, if any, to be withdrawn from the Margin Account;
and (f) the amount of cash and/or amount and kind of Securities, if any, to be
withdrawn from the Senior Security Account for such Series; and the amount of
cash and/or the amount and kind of Securities, if any, to be withdrawn from the
Collateral Account for such Series. Upon the return and/or cancellation of the
receipt, if any, delivered pursuant to the preceding paragraph of this Article,
the Custodian shall pay out of the money held for the account of the Series to
which such Stock Index Option was specifically allocated to the Clearing Member
specified in the Certificate the total amount payable, if any, as specified
therein.
12. Whenever the Trust purchases any Option identical to a previously
written Option described in paragraphs, 6, 8 or 10 of this Article in a
transaction expressly designated as a "Closing Purchase Transaction" in order to
liquidate its position as a writer of an Option, the Trust shall promptly
deliver to the Custodian a Certificate specifying with respect to the Option
being purchased: (a) that the transaction is a Closing Purchase Transaction; (b)
the Series for which the Option was written; (c) the name of the issuer and the
title and number of shares subject to the Option, or, in the case of a Stock
Index Option, the stock index to which such Option relates and the number of
Options held; (d) the exercise price; (e) the premium to be paid by the Trust;
(f) the expiration date; (g) the type of Option (put or call); (h) the date of
such purchase; (i) the name of the Clearing Member to whom the premium is to be
paid; and (j) the amount of cash and/or the amount and kind of Securities, if
any, to be withdrawn from the Collateral Account, a specified Margin Account, or
the Senior Security Account for such Series. Upon the Custodian's payment of the
premium and the return and/or cancellation of any receipt issued pursuant to
paragraphs 6, 8 or 10 of this Article with respect to the Option being
liquidated through the Closing Purchase Transaction, the Custodian shall remove,
or direct the Depository to remove, the previously imposed restrictions on the
Securities underlying the Call Option.
13. Upon the expiration, exercise or consummation of a Closing Purchase
Transaction with respect to any Option purchased or written by the Trust and
described in this Article, the Custodian shall delete such Option from the
statements delivered to the Trust pursuant to paragraph 3 of Article III herein,
and upon the return and/or cancellation of any receipts issued by the Custodian,
shall make such withdrawals from the Collateral Account, and the Margin Account
and/or the Senior Security Account as may be specified in a Certificate received
in connection with such expiration, exercise, or consummation.
ARTICLE VI.
FUTURES CONTRACTS
1. Whenever the Trust shall enter into a Futures Contract, the Trust
shall deliver to the Custodian a Certificate specifying with respect to such
Futures Contract, (or with respect to any number of identical Futures
Contract(s)): (a) the Series for which the Futures Contract is being entered;
(b) the category of Futures Contract (the name of the underlying stock index or
financial instrument); (c) the number of identical Futures Contracts entered
into; (d) the delivery or settlement date of the Futures Contract(s); (e) the
date the Futures Contract(s) was (were) entered into and the maturity date; (f)
whether the Trust is buying (going long) or selling (going short) on such
Futures Contract(s); (g) the amount of cash and/or the amount and kind of
Securities, if any, to be deposited in the Senior Security Account for such
Series; (h) the name of the broker, dealer, or futures commission merchant
through whom the Futures Contract was entered into; and (i) the amount of fee or
commission, if any, to be paid and the name of the
<PAGE>
broker, dealer, or futures commission merchant to whom such amount is to be
paid. The Custodian shall make the deposits, if any, to the Margin Account in
accordance with the terms and conditions of the Margin Account Agreement. The
Custodian shall make payment out of the money specifically allocated to such
Series of the fee or commission, if any, specified in the Certificate and
deposit in the Senior Security Account for such Series the amount of cash and/or
the amount and kind of Securities specified in said Certificate.
2. (a) Any variation margin payment or similar payment required to be
made by the Trust to a broker, dealer, or futures commission merchant with
respect to an outstanding Futures Contract, shall be made by the Custodian in
accordance with the terms and conditions of the Margin Account Agreement.
(b) Any variation margin payment or similar payment from a
broker, dealer, or futures commission merchant to the Trust with respect to an
outstanding Futures Contract, shall be received and dealt with by the Custodian
in accordance with the terms and conditions of the Margin Account Agreement.
3. Whenever a Futures Contract held by the Custodian hereunder is
retained by the Trust until delivery or settlement is made on such Futures
Contract, the Trust shall deliver to the Custodian a Certificate specifying: (a)
the Futures Contract and the Series to which the same relates; (b) with respect
to a Stock Index Futures Contract, the total cash settlement amount to be paid
or received, and with respect to a Financial Futures Contract, the Securities
and/or amount of cash to be delivered or received; (c) the broker, dealer, or
futures commission merchant to or from whom payment or delivery is to be made or
received; and (d) the amount of cash and/or Securities to be withdrawn from the
Senior Security Account for such Series. The Custodian shall make the payment or
delivery specified in the Certificate, and delete such Futures Contract from the
statements delivered to the Trust pursuant to paragraph 3 of Article III herein.
4. Whenever the Trust shall enter into a Futures Contract to offset a
Futures Contract held by the Custodian hereunder, the Trust shall deliver to the
Custodian a Certificate specifying: (a) the items of information required in a
Certificate described in paragraph 1 of this Article, and (b) the Futures
Contract being offset. The Custodian shall make payment out of the money
specifically allocated to such Series of the fee or commission, if any,
specified in the Certificate and delete the Futures Contract being offset from
the statements delivered to the Trust pursuant to paragraph 3 of Article III
herein, and make such withdrawals from the Senior Security Account for such
Series as may be specified in such Certificate. The withdrawals, if any, to be
made from the Margin Account shall be made by the Custodian in accordance with
the terms and conditions of the Margin Account Agreement.
5. Notwithstanding any other provision in this Agreement to the
contrary, the Custodian shall deliver cash and Securities to a futures
commission merchant upon receipt of a Certificate from the Trust specifying: (a)
the name of the futures commission merchant; (b) the specific cash and
Securities to be delivered; (c) the date of such delivery; and (d) the date of
the agreement between the Trust and such futures commission merchant entered
pursuant to Rule 17f-6 under the Investment Company Act 1940, as amended. Each
delivery of such a Certificate by the Trust shall constitute (x) a
representation and warranty by the Trust that the Rule 17f-6 agreement has been
duly authorized, executed and delivered by the Trust and the futures commission
merchant and complies with Rule 17f-6, and (y) an agreement by the Trust that
the Custodian shall not be liable for the acts or omissions of any such futures
commission merchant.
ARTICLE VII.
FUTURES CONTRACT OPTIONS
<PAGE>
1. Promptly after the purchase of any Futures Contract Option by the
Trust, the Trust shall promptly deliver to the Custodian a Certificate
specifying with respect to such Futures Contract Option: (a) the Series to which
such Option is specifically allocated; (b) the type of Futures Contract Option
(put or call); (c) the type of Futures Contract and such other information as
may be necessary to identify the Futures Contract underlying the Futures
Contract Option purchased; (d) the expiration date; (e) the exercise price; (f)
the dates of purchase and settlement; (g) the amount of premium to be paid by
the Trust upon such purchase; (h) the name of the broker or futures commission
merchant through whom such option was purchased; and (i) the name of the broker,
or futures commission merchant, to whom payment is to be made. The Custodian
shall pay out of the money specifically allocated to such Series, the total
amount to be paid upon such purchase to the broker or futures commissions
merchant through whom the purchase was made, provided that the same conforms to
the amount set forth in such Certificate.
2. Promptly after the sale of any Futures Contract Option purchased by
the Trust pursuant to paragraph 1 hereof, the Trust shall promptly deliver to
the Custodian a Certificate specifying with respect to each such sale: (a) the
Series to which such Futures Contract Option was specifically allocated; (b) the
type of Futures Contract Option (put or call); (c) the type of Futures Contract
and such other information as may be necessary to identify the Futures Contract
underlying the Futures Contract Option; (d) the date of sale; (e) the sale
price; (f) the date of settlement; (g) the total amount payable to the Trust
upon such sale; and (h) the name of the broker or futures commission merchant
through whom the sale was made. The Custodian shall consent to the cancellation
of the Futures Contract Option being closed against payment to the Custodian of
the total amount payable to the Trust, provided the same conforms to the total
amount payable as set forth in such Certificate.
3. Whenever a Futures Contract Option purchased by the Trust pursuant
to paragraph 1 is exercised by the Trust, the Trust shall promptly deliver to
the Custodian a Certificate specifying: (a) the Series to which such Futures
Contract Option was specifically allocated; (b) the particular Futures Contract
Option (put or call) being exercised; (c) the type of Futures Contract
underlying the Futures Contract Option; (d) the date of exercise; (e) the name
of the broker or futures commission merchant through whom the Futures Contract
Option is exercised; (f) the net total amount, if any, payable by the Trust; (g)
the amount, if any, to be received by the Trust; and (h) the amount of cash
and/or the amount and kind of Securities to be deposited in the Senior Security
Account for such Series. The Custodian shall make, out of the money and
Securities specifically allocated to such Series, the payments, if any, and the
deposits, if any, into the Senior Security Account as specified in the
Certificate. The deposits, if any, to be made to the Margin Account shall be
made by the Custodian in accordance with the terms and conditions of the Margin
Account Agreement.
4. Whenever the Trust writes a Futures Contract Option, the Trust shall
promptly deliver to the Custodian a Certificate specifying with respect to such
Futures Contract Option: (a) the Series for which such Futures Contract Option
was written; (b) the type of Futures Contract Option (put or call); (c) the type
of Futures Contract and such other information as may be necessary to identify
the Futures Contract underlying the Futures Contract Option; (d) the expiration
date; (e) the exercise price; (f) the premium to be received by the Trust; (g)
the name of the broker or futures commission merchant through whom the premium
is to be received; and (h) the amount of cash and/or the amount and kind of
Securities, if any, to be deposited in the Senior Security Account for such
Series. The Custodian shall, upon receipt of the premium specified in the
Certificate, make out of the money and Securities specifically allocated to such
<PAGE>
Series the deposits into the Senior Security Account, if any, as specified in
the Certificate. The deposits, if any, to be made to the Margin Account shall be
made by the Custodian in accordance with the terms and conditions of the Margin
Account Agreement.
5. Whenever a Futures Contract Option written by the Trust which is a
call is exercised, the Trust shall promptly deliver to the Custodian a
Certificate specifying: (a) the Series to which such Futures Contract Option was
specifically allocated; (b) the particular Futures Contract Option exercised;
(c) the type of Futures Contract underlying the Futures Contract Option; (d) the
name of the broker or futures commission merchant through whom such Futures
Contract Option was exercised; (e) the net total amount, if any, payable to the
Trust upon such exercise; (f) the net total amount, if any, payable by the Trust
upon such exercise; and (g) the amount of cash and/or the amount and kind of
Securities to be deposited in the Senior Security Account for such Series. The
Custodian shall, upon its receipt of the net total amount payable to the Trust,
if any, specified in such Certificate make the payments, if any, and the
deposits, if any, into the Senior Security Account as specified in the
Certificate. The deposits, if any, to be made to the Margin Account shall be
made by the Custodian in accordance with the terms and conditions of the Margin
Account Agreement.
6. Whenever a Futures Contract Option which is written by the Trust and
which is a put is exercised, the Trust shall promptly deliver to the Custodian a
Certificate specifying: (a) the Series to which such Option was specifically
allocated; (b) the particular Futures Contract Option exercised; (c) the type of
Futures Contract underlying such Futures Contract Option; (d) the name of the
broker or futures commission merchant through whom such Futures Contract Option
is exercised; (e) the net total amount, if any, payable to the Trust upon such
exercise; (f) the net total amount, if any, payable by the Trust upon such
exercise; and (g) the amount and kind of Securities and/or cash to be withdrawn
from or deposited in, the Senior Security Account for such Series, if any. The
Custodian shall, upon its receipt of the net total amount payable to the Trust,
if any, specified in the Certificate, make out of the money and Securities
specifically allocated to such Series, the payments, if any, and the deposits,
if any, into the Senior Security Account as specified in the Certificate. The
deposits to and/or withdrawals from the Margin Account, if any, shall be made by
the Custodian in accordance with the terms and conditions of the Margin Account
Agreement.
7. Whenever the Trust purchases any Futures Contract Option identical
to a previously written Futures Contract Option described in this Article in
order to liquidate its position as a writer of such Futures Contract Option, the
Trust shall promptly deliver to the Custodian a Certificate specifying with
respect to the Futures Contract Option being purchased: (a) the Series to which
such Option is specifically allocated; (b) that the transaction is a closing
transaction; (c) the type of Futures Contract and such other information as may
be necessary to identify the Futures Contract underlying the Futures Option
Contract; (d) the exercise price; (e) the premium to be paid by the Trust; (f)
the expiration date; (g) the name of the broker or futures commission merchant
to whom the premium is to be paid; and (h) the amount of cash and/or the amount
and kind of Securities, if any, to be withdrawn from the Senior Security Account
for such Series. The Custodian shall effect the withdrawals from the Senior
Security Account specified in the Certificate. The withdrawals, if any, to be
made from the Margin Account shall be made by the Custodian in accordance with
the terms and conditions of the Margin Account Agreement.
8. Upon the expiration, exercise, or consummation of a closing
transaction with respect to, any Futures Contract Option written or purchased by
the Trust and described in this
<PAGE>
Article, the Custodian shall (a) delete such Futures Contract Option from the
statements delivered to the Trust pursuant to paragraph 3 of Article III herein
and, (b) make such withdrawals from and/or in the case of an exercise such
deposits into the Senior Security Account as may be specified in a Certificate.
The deposits to and/or withdrawals from the Margin Account, if any, shall be
made by the Custodian in accordance with the terms and conditions of the Margin
Account Agreement.
9. Futures Contracts acquired by the Trust through the exercise of a
Futures Contract Option described in this Article shall be subject to Article VI
hereof.
10. Notwithstanding any other provision in this Agreement to the
contrary, the Custodian shall deliver cash and Securities to a futures
commission merchant upon receipt of a Certificate from the Trust specifying: (a)
the name of the futures commission merchant; (b) the specific cash and
Securities to be delivered; (c) the date of such delivery; and (d) the date of
the agreement between the Trust and such futures commission merchant entered
pursuant to Rule 17f-6 under the Investment Company Act 1940, as amended. Each
delivery of such a Certificate by the Trust shall constitute (x) a
representation and warranty by the Trust that the Rule 17f-6 agreement has been
duly authorized, executed and delivered by the Trust and the futures commission
merchant and complies with Trust 17f-6, and (y) an agreement by the Trust that
the Custodian shall not be liable for the acts or omissions of any such futures
commission merchant.
ARTICLE VIII.
SHORT SALES
1. Promptly after any short sales by any Series of the Trust, the Trust
shall promptly deliver to the Custodian a Certificate specifying: (a) the Series
for which such short sale was made; (b) the name of the issuer and the title of
the Security; (c) the number of shares or principal amount sold, and accrued
interest or dividends, if any; (d) the dates of the sale and settlement; (e) the
sale price per unit; (f) the total amount credited to the Trust upon such sale,
if any, (g) the amount of cash and/or the amount and kind of Securities, if any,
which are to be deposited in a Margin Account and the name in which such Margin
Account has been or is to be established; (h) the amount of cash and/or the
amount and kind of Securities, if any, to be deposited in a Senior Security
Account, and (i) the name of the broker through whom such short sale was made.
The Custodian shall upon its receipt of a statement from such broker confirming
such sale and that the total amount credited to the Trust upon such sale, if
any, as specified in the Certificate is held by such broker for the account of
the Custodian (or any nominee of the Custodian) as custodian of the Trust, issue
a receipt or make the deposits into the Margin Account and the Senior Security
Account specified in the Certificate.
2. In connection with the closing-out of any short sale, the Trust
shall promptly deliver to the Custodian a Certificate specifying with respect to
each such closing out: (a) the Series for which such transaction is being made;
(b) the name of the issuer and the title of the Security; (c) the number of
shares or the principal amount, and accrued interest or dividends, if any,
required to effect such closing-out to be delivered to the broker; (d) the dates
of closing-out and settlement; (e) the purchase price per unit; (f) the net
total amount payable to the Trust upon such closing-out; (g) the net total
amount payable to the broker upon such closing-out; (h) the amount of cash and
the amount and kind of Securities to be withdrawn, if any, from the Margin
Account; (i) the amount of cash and/or the amount and kind of Securities, if
any, to be withdrawn from the Senior Security Account; and (j) the name of the
broker through whom the Trust is effecting such closing-out. The Custodian
shall, upon receipt of the net total amount payable to the Trust upon such
closing-out, and the return and/or cancellation of the receipts, if any, issued
by the Custodian with respect to the short sale being closed-out, pay out of the
<PAGE>
money held for the account of the Trust to the broker the net total amount
payable to the broker, and make the withdrawals from the Margin Account and the
Senior Security Account, as the same are specified in the Certificate.
ARTICLE IX.
REVERSE REPURCHASE AGREEMENTS
1. Promptly after the Trust enters into a Reverse Repurchase Agreement
with respect to Securities and money held by the Custodian hereunder, the Trust
shall deliver to the Custodian a Certificate, or in the event such Reverse
Repurchase Agreement is a Money Market Security, a Certificate or Oral
Instructions specifying: (a) the Series for which the Reverse Repurchase
Agreement is entered; (b) the total amount payable to the Trust in connection
with such Reverse Repurchase Agreement and specifically allocated to such
Series; (c) the broker or dealer through or with whom the Reverse Repurchase
Agreement is entered; (d) the amount and kind of Securities to be delivered by
the Trust to such broker or dealer; (e) the date of such Reverse Repurchase
Agreement; and (f) the amount of cash and/or the amount and kind of Securities,
if any, specifically allocated to such Series to be deposited in a Senior
Security Account for such Series in connection with such Reverse Repurchase
Agreement. The Custodian shall, upon receipt of the total amount payable to the
Trust specified in the Certificate or Oral Instructions make the delivery to the
broker or dealer, and the deposits, if any, to the Senior Security Account,
specified in such Certificate or Oral Instructions.
2. Upon the termination of a Reverse Repurchase Agreement described in
preceding paragraph 1 of this Article, the Trust shall promptly deliver a
Certificate or, in the event such Reverse Repurchase Agreement is a Money Market
Security, a Certificate or Oral Instructions to the Custodian specifying: (a)
the Reverse Repurchase Agreement being terminated and the Series for which same
was entered; (b) the total amount payable by the Trust in connection with such
termination; (c) the amount and kind of Securities to be received by the Trust
and specifically allocated to such Series in connection with such termination;
(d) the date of termination; (e) the name of the broker or dealer with or
through whom the Reverse Repurchase Agreement is to be terminated; and (f) the
amount of cash and/or the amount and kind of Securities to be withdrawn from the
Senior Securities Account for such Series. The Custodian shall, upon receipt of
the amount and kind of Securities to be received by the Trust specified in the
Certificate or Oral Instructions, make the payment to the broker or dealer, and
the withdrawals, if any, from the Senior Security Account, specified in such
Certificate or Oral Instructions.
ARTICLE X.
LOAN OF PORTFOLIO SECURITIES OF THE TRUST
1. Promptly after each loan of portfolio Securities specifically
allocated to a Series held by the Custodian hereunder, the Trust shall deliver
or cause to be delivered to the Custodian a Certificate specifying with respect
to each such loan: (a) the Series to which the loaned Securities are
specifically allocated; (b) the name of the issuer and the title of the
Securities, (c) the number of shares or the principal amount loaned, (d) the
date of loan and delivery, (e) the total amount to be delivered to the Custodian
against the loan of the Securities, including the amount of cash collateral and
the premium, if any, separately identified, and (f) the name of the broker,
dealer, or financial institution to which the loan was made. The Custodian shall
deliver the Securities thus designated to the broker, dealer or financial
institution to which the loan was made upon receipt of the total amount
designated as to be delivered against the loan of Securities. The Custodian may
accept payment in connection with a delivery otherwise than through the
Book-Entry System or Depository only in the form of a certified or bank
cashier's check payable to the order of the Trust or the Custodian drawn on New
York Clearing House
<PAGE>
funds and may deliver Securities in accordance with the customs prevailing among
dealers in securities.
2. Promptly after each termination of the loan of Securities by the
Trust, the Trust shall deliver or cause to be delivered to the Custodian a
Certificate specifying with respect to each such loan termination and return of
Securities: (a) the Series to which the loaned Securities are specifically
allocated; (b) the name of the issuer and the title of the Securities to be
returned, (c) the number of shares or the principal amount to be returned, (d)
the date of termination, (e) the total amount to be delivered by the Custodian
(including the cash collateral for such Securities minus any offsetting credits
as described in said Certificate), and (f) the name of the broker, dealer, or
financial institution from which the Securities will be returned. The Custodian
shall receive all Securities returned from the broker, dealer, or financial
institution to which such Securities were loaned and upon receipt thereof shall
pay, out of the money held for the account of the Trust, the total amount
payable upon such return of Securities as set forth in the Certificate.
<PAGE>
ARTICLE XI.
CONCERNING MARGIN ACCOUNTS, SENIOR SECURITY ACCOUNTS, AND COLLATERAL ACCOUNTS
1. The Custodian shall, from time to time, make such deposits to, or
withdrawals from, a Senior Security Account as specified in a Certificate
received by the Custodian. Such Certificate shall specify the Series for which
such deposit or withdrawal is to be made and the amount of cash and/or the
amount and kind of Securities specifically allocated to such Series to be
deposited in, or withdrawn from, such Senior Security Account for such Series.
In the event that the Trust fails to specify in a Certificate the Series, the
name of the issuer, the title and the number of shares or the principal amount
of any particular Securities to be deposited by the Custodian into, or withdrawn
from, a Senior Securities Account, the Custodian shall be under no obligation to
make any such deposit or withdrawal and shall so notify the Trust.
2. The Custodian shall make deliveries or payments from a Margin
Account to the broker, dealer, futures commission merchant or Clearing Member in
whose name, or for whose benefit, the account was established as specified in
the Margin Account Agreement.
3. Amounts received by the Custodian as payments or distributions with
respect to Securities deposited in any Margin Account shall be dealt with in
accordance with the terms and conditions of the Margin Account Agreement.
4. The Custodian shall have a continuing lien and security interest in
and to any property at any time held by the Custodian in any Collateral Account
described herein. In accordance with applicable law the Custodian may enforce
its lien and realize on any such property whenever the Custodian has made
payment or delivery pursuant to any Put Option guarantee letter or similar
document or any receipt issued hereunder by the Custodian. In the event the
Custodian should realize on any such property net proceeds which are less than
the Custodian's obligations under any Put Option guarantee letter or similar
document or any receipt, such deficiency shall be a debt owed the Custodian by
the Trust within the scope of Article XIV herein.
5. On each business day the Custodian shall furnish the Trust with a
statement with respect to each Margin Account in which money or Securities are
held specifying as of the close of business on the previous business day: (a)
the name of the Margin Account; (b) the amount and kind of Securities held
therein; and (c) the amount of money held therein. The Custodian shall make
available upon request to any broker, dealer, or futures commission merchant
<PAGE>
specified in the name of a Margin Account a copy of the statement furnished the
Trust with respect to such Margin Account.
6. Promptly after the close of business on each business day in which
cash and/or Securities are maintained in a Collateral Account for any Series,
the Custodian shall furnish the Trust with a statement with respect to such
Collateral Account specifying the amount of cash and/or the amount and kind of
Securities held therein. No later than the close of business next succeeding the
delivery to the Trust of such statement, the Trust shall furnish to the
Custodian a Certificate specifying the then market value of the Securities
described in such statement. In the event such then market value is indicated to
be less than the Custodian's obligation with respect to any outstanding Put
Option guarantee letter or similar document, the Trust shall promptly specify in
a Certificate the additional cash and/or Securities to be deposited in such
Collateral Account to eliminate such deficiency.
ARTICLE XII.
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
1. The Trust shall furnish to the Custodian a copy of the resolution of
the Board of Trustees of the Trust, certified by the Secretary or any Assistant
Secretary, either (i) setting forth with respect to the Series specified therein
the date of the declaration of a dividend or distribution, the date of payment
thereof, the record date as of which shareholders entitled to payment shall be
determined, the amount payable per Share of such Series to the shareholders of
record as of that date and the total amount payable to the Dividend Agent and
any sub-dividend agent or co-dividend agent of the Trust on the payment date, or
(ii) authorizing with respect to the Series specified therein the declaration of
dividends and distributions on a daily basis and authorizing the Custodian to
rely on Oral Instructions or a Certificate setting forth the date of the
declaration of such dividend or distribution, the date of payment thereof, the
record date as of which shareholders entitled to payment shall be determined,
the amount payable per Share of such Series to the shareholders of record as of
that date and the total amount payable to the Dividend Agent on the payment
date.
2. Upon the payment date specified in such resolution, Oral
Instructions or Certificate, as the case may be, the Custodian shall pay out of
the money held for the account of each Series the total amount payable to the
Dividend Agent and any sub-dividend agent or co-dividend agent of the Trust with
respect to such Series.
ARTICLE XIII.
SALE AND REDEMPTION OF SHARES
1. Whenever the Trust shall sell any Shares, it shall deliver to the
Custodian a Certificate duly specifying:
(a) the Series, the number of Shares sold, trade date, and
price; and
(b) the amount of money to be received by the Custodian for the
sale of such Shares and specifically allocated to the separate account in the
name of such Series.
2. Upon receipt of such money from the Transfer Agent, the Custodian
shall credit such money to the separate account in the name of the Series for
which such money was received.
3. Upon issuance of any Shares of any Series described in the foregoing
provisions of this Article, the Custodian shall pay, out of the money held for
the account of such Series, all original issue or other taxes required to be
paid by the Trust in connection with such issuance upon the receipt of a
Certificate specifying the amount to be paid.
4. Except as provided hereinafter, whenever the Trust desires the
Custodian to make payment out of the money held by the Custodian hereunder in
connection with a redemption of any Shares, it shall furnish to the Custodian a
Certificate specifying:
<PAGE>
(a) the number and Series of Shares redeemed; and
(b) the amount to be paid for such Shares.
5. Upon receipt from the Transfer Agent of an advice setting forth the
Series and number of Shares received by the Transfer Agent for redemption and
that such Shares are in good form for redemption, the Custodian shall make
payment to the Transfer Agent out of the money held in the separate account in
the name of the Series the total amount specified in the Certificate issued
pursuant to the foregoing paragraph 4 of this Article.
6. Notwithstanding the above provisions regarding the redemption of any
Shares, whenever any Shares are redeemed pursuant to any check redemption
privilege which may from time to time be offered by the Trust, the Custodian,
unless otherwise instructed by a Certificate, shall, upon receipt of an advice
from the Trust or its agent setting forth that the redemption is in good form
for redemption in accordance with the check redemption procedure, honor the
check presented as part of such check redemption privilege out of the money held
in the separate account of the Series of the Shares being redeemed.
ARTICLE XIV.OVERDRAFTS OR INDEBTEDNESS
1. If the Custodian, should in its sole discretion advance funds on
behalf of any Series which results in an overdraft because the money held by the
Custodian in the separate account for such Series shall be insufficient to pay
the total amount payable upon a purchase of Securities specifically allocated to
such Series, as set forth in a Certificate or Oral Instructions, or which
results in an overdraft in the separate account of such Series for some other
reason, or if the Trust is for any other reason indebted to the Custodian with
respect to a Series, including any indebtedness to The Bank of New York under
the Trust's Cash Management and Related Services Agreement, (except a borrowing
for investment or for temporary or emergency purposes using Securities as
collateral pursuant to a separate agreement and subject to the provisions of
paragraph 2 of this Article), such overdraft or indebtedness shall be deemed to
be a loan made by the Custodian to the Trust for such Series payable on demand
and shall bear interest from the date incurred at a rate per annum (based on a
360-day year for the actual number of days involved) equal to 1/2% over
Custodian's prime commercial lending rate in effect from time to time, such rate
to be adjusted on the effective date of any change in such prime commercial
lending rate but in no event to be less than 6% per annum. In addition, the
Trust hereby agrees that the Custodian shall have a continuing lien, security
interest, and security entitlement in and to any property including any
investment property or any financial asset specifically allocated to such Series
at any time held by it for the benefit of such Series or in which the Trust may
have an interest which is then in the Custodian's possession or control or in
possession or control of any third party acting in the Custodian's behalf. The
Trust authorizes the Custodian, in its sole discretion, at any time to charge
any such overdraft or indebtedness together with interest due thereon against
any balance of account standing to such Series' credit on the Custodian's books.
In addition, the Trust hereby covenants that on each Business Day on which
either it intends to enter a Reverse Repurchase Agreement and/or otherwise
borrow from a third party, or which next succeeds a Business Day on which at the
close of business the Trust had outstanding a Reverse Repurchase Agreement or
such a borrowing, it shall prior to 9 a.m., New York City time, advise the
Custodian, in writing, of each such borrowing, shall specify the Series to which
the same relates, and shall not incur any indebtedness not so specified other
than from the Custodian.
<PAGE>
2. The Trust will cause to be delivered to the Custodian by any bank
(including, if the borrowing is pursuant to a separate agreement, the Custodian)
from which it borrows money for investment or for temporary or emergency
purposes using Securities held by the Custodian hereunder as collateral for such
borrowings, a notice or undertaking in the form currently employed by any such
bank setting forth the amount which such bank will loan to the Trust against
delivery of a stated amount of collateral. The Trust shall promptly deliver to
the Custodian a Certificate specifying with respect to each such borrowing: (a)
the Series to which such borrowing relates; (b) the name of the bank, (c) the
amount and terms of the borrowing, which may be set forth by incorporating by
reference an attached promissory note, duly endorsed by the Trust, or other loan
agreement,(d) the time and date, if known, on which the loan is to be entered
into, (e) the date on which the loan becomes due and payable, (f) the total
amount payable to the Trust on the borrowing date, (g) the market value of
Securities to be delivered as collateral for such loan, including the name of
the issuer, the title and the number of shares or the principal amount of any
particular Securities, and (h) a statement specifying whether such loan is for
investment purposes or for temporary or emergency purposes and that such loan is
in conformance with the Investment Company Act of 1940 and the Trust's
prospectus. The Custodian shall deliver on the borrowing date specified in a
Certificate the specified collateral and the executed promissory note, if any,
against delivery by the lending bank of the total amount of the loan payable,
provided that the same conforms to the total amount payable as set forth in the
Certificate. The Custodian may, at the option of the lending bank, keep such
collateral in its possession, but such collateral shall be subject to all rights
therein given the lending bank by virtue of any promissory note or loan
agreement. The Custodian shall deliver such Securities as additional collateral
as may be specified in a Certificate to collateralize further any transaction
described in this paragraph. The Trust shall cause all Securities released from
collateral status to be returned directly to the Custodian, and the Custodian
shall receive from time to time such return of collateral as may be tendered to
it. In the event that the Trust fails to specify in a Certificate the Series,
the name of the issuer, the title and number of shares or the principal amount
of any particular Securities to be delivered as collateral by the Custodian, the
Custodian shall not be under any obligation to deliver any Securities.
ARTICLE XV.
INSTRUCTIONS
1. With respect to any software provided by the Custodian to a Trust in
order for the Trust to transmit Instructions to the Custodian (the "Software"),
the Custodian grants to such Trust a personal, nontransferable and nonexclusive
license to use the Software solely for the purpose of transmitting Instructions
to, and receiving communications from, the Custodian in connection with its
account(s). The Trust agrees not to sell, reproduce, lease or otherwise provide,
directly or indirectly, the Software or any portion thereof to any third party
without the prior written consent of the Custodian.
<PAGE>
2. The Trust shall obtain and maintain at its own cost and expense all
equipment and services, including but not limited to communications services,
necessary for it to utilize the Software and transmit Instructions to the
Custodian. The Custodian shall not be responsible for the reliability,
compatibility with the Software or availability of any such equipment or
services or the performance or nonperformance by any nonparty to this Custody
Agreement.
3. The Trust acknowledges that the Software, all data bases made
available to the Trust by utilizing the Software (other than data bases relating
solely to the assets of the Trust and transactions with respect thereto), and
any proprietary data, processes, information and documentation (other than which
are or become part of the public domain or are legally required to be made
available to the public) (collectively, the "Information"), are the exclusive
and confidential property of the Custodian. The Trust shall keep the Information
confidential by using the same care and discretion that the Trust uses with
respect to its own confidential property and trade secrets and shall neither
make nor permit any disclosure without the prior written consent of the
Custodian. Upon termination of this Agreement or the Software license granted
hereunder for any reason, the Trust shall return to the Custodian all copies of
the Information which are in its possession or under its control or which the
Trust distributed to third parties.
4. The Custodian reserves the right to modify the Software from time to
time upon reasonable prior notice and the Trust shall install new releases of
the Software as the Custodian may direct. The Trust agrees not to modify or
attempt to modify the Software without the Custodian's prior written consent.
The Trust acknowledges that any modifications to the Software, whether by the
Trust or the Custodian and whether with or without the Custodian's consent,
shall become the property of the Custodian.
5. The Custodian makes no warranties or representations of any kind
with regard to the Software or the method(s) by which the Trust may transmit
Instructions to the Custodian, express or implied, including but not limited to
any implied warranties of merchantability or fitness for a particular purpose.
6. Where the method for transmitting Instructions by the Trust involves
an automatic systems acknowledgment by the Custodian of its receipt of such
Instructions, then in the absence of such acknowledgment the Custodian shall not
be liable for any failure to act pursuant to such Instructions, the Trust may
not claim that such Instructions were received by the Custodian, and the Trust
shall deliver a Certificate by some other means.
<PAGE>
7. (a) The Trust agrees that where it delivers to the Custodian
Instructions hereunder, it shall be the Trust's sole responsibility to ensure
that only persons duly authorized by the Trust transmit such Instructions to the
Custodian. The Trust will cause all persons transmitting Instructions to the
Custodian to treat applicable user and authorization codes, passwords and
authentication keys with extreme care, and irrevocably authorizes the Custodian
to act in accordance with and rely upon Instructions received by it pursuant
hereto.
(b) The Trust hereby represents, acknowledges and agrees that
it is fully informed of the protections and risks associated with the various
methods of transmitting Instructions to the Custodian and that there may be more
secure methods of transmitting instructions to the Custodian than the method(s)
selected by the Trust. The Trust hereby agrees that the security procedures (if
any) to be followed in connection with the Trust's transmission of Instructions
provide to it a commercially reasonable degree of protection in light of its
particular needs and circumstances.
8. The Trust hereby represents, warrants and covenants to the Custodian
that this Agreement has been duly approved by a resolution of its Board of
Trustees, and that its transmission of Instructions pursuant hereto shall at all
times comply with the Investment Company Act of 1940, as amended.
9. The Trust shall notify the Custodian of any errors, omissions or
interruptions in, or delay or unavailability of, its ability to send
Instructions as promptly as practicable, and in any event within 24 hours after
the earliest of (i) discovery thereof, (ii) the Business Day on which discovery
should have occurred through the exercise of reasonable care and (iii) in the
case of any error, the date of actual receipt of the earliest notice which
reflects such error, it being agreed that discovery and receipt of notice may
only occur on a business day. The Custodian shall promptly advise the Trust
whenever the Custodian learns of any errors, omissions or interruption in, or
delay or unavailability of, the Trust's ability to send Instructions.
ARTICLE XVI.
DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTYOF
ANY SERIES HELD OUTSIDE OF THE UNITED STATES
1. The Custodian is authorized and instructed to employ, as
sub-custodian for each Series' Securities for which the primary market is
outside the United States ("Foreign Securities") and other assets, the foreign
banking institutions and foreign securities depositories and clearing agencies
designated on Schedule I hereto ("Foreign Sub-Custodians"). The Trust may
designate any additional foreign sub-custodian with which the Custodian has an
agreement for such entity to act as the Custodian's agent, as its sub-custodian
and any such additional foreign sub-custodian shall be deemed added to Schedule
I. Upon receipt of a Certificate from the Trust, the Custodian shall cease the
employment of any one or more Foreign Sub-Custodians for maintaining custody of
the Trust's assets and such Foreign Sub-Custodian shall be deemed deleted from
Schedule I.
2. Each delivery of a Certificate to the Custodian in connection with a
transaction involving the use of a Foreign Sub-Custodian shall constitute a
representation and warranty by the Trust that its Board of Trustees, or its
third party foreign custody manager as defined in Rule 17f-5 under the
Investment Company Act of 1940, as amended, if any, has determined that use of
such Foreign Sub-Custodian satisfies the requirements of such Investment Company
Act of 1940 and such Rule 17f-5 thereunder.
3. The Custodian shall identify on its books as belonging to each
Series of the Trust the Foreign Securities of such Series held by each Foreign
Sub-Custodian. At the election of the Trust, it shall be entitled to be
subrogated to the rights of the Custodian with respect to any claims by the
Trust or any Series against a Foreign Sub-Custodian as a consequence of any
loss, damage, cost, expense, liability or claim sustained or incurred by the
Trust or any Series if and to the extent that the Trust or such Series has not
been made whole for any such loss, damage, cost, expense, liability or claim.
<PAGE>
4. Upon request of the Trust, the Custodian will, consistent with the
terms of the applicable Foreign Sub-Custodian agreement, use reasonable efforts
to arrange for the independent accountants of the Trust to be afforded access to
the books and records of any Foreign Sub-Custodian insofar as such books and
records relate to the performance of such Foreign Sub-Custodian under its
agreement with the Custodian on behalf of the Trust.
5. The Custodian will supply to the Trust from time to time, as
mutually agreed upon, statements in respect of the securities and other assets
of each Series held by Foreign Sub-Custodians, including but not limited to an
identification of entities having possession of each Series' Foreign Securities
and other assets, and advices or notifications of any transfers of Foreign
Securities to or from each custodial account maintained by a Foreign
Sub-Custodian for the Custodian on behalf of the Series.
6. The Custodian shall transmit promptly to the Trust all notices,
reports or other written information received pertaining to the Trust's Foreign
Securities, including without limitation, notices of corporate action, proxies
and proxy solicitation materials.
7. Notwithstanding any provision of this Agreement to the contrary,
settlement and payment for securities received for the account of any Series and
delivery of securities maintained for the account of such Series may be effected
in accordance with the customary or established securities trading or securities
processing practices and procedures in the jurisdiction or market in which the
transaction occurs, including, without limitation, delivery of securities to the
purchaser thereof or to a dealer therefor (or an agent for such purchaser or
dealer) against a receipt with the expectation of receiving later payment for
such securities from such purchaser or dealer.
8. Notwithstanding any other provision in this Agreement to the
contrary, with respect to any losses or damages arising out of or relating to
any actions or omissions of any Foreign Sub-Custodian the sole responsibility
and liability of the Custodian shall be to take appropriate action at the
Trust's expense to recover such loss or damage from the Foreign Sub-Custodian.
It is expressly understood and agreed that the Custodian's sole responsibility
and liability shall be limited to amounts so recovered from the Foreign
Sub-Custodian.
ARTICLE XVII.
FX TRANSACTIONS
1. Whenever the Trust shall enter into an FX Transaction, the Trust
shall promptly deliver to the Custodian a Certificate or Oral Instructions
specifying with respect to such FX Transaction: (a) the Series to which such FX
Transaction is specifically allocated; (b) the type and amount of Currency to be
purchased by the Trust; (c) the type and amount of Currency to be sold by the
Trust; (d) the date on which the Currency to be purchased is to be delivered;
(e) the date on which the Currency to be sold is to be delivered; and (f) the
name of the person from whom or through whom such currencies are to be purchased
and sold. Unless otherwise instructed by a Certificate or Oral Instructions, the
Custodian shall deliver, or shall instruct a Foreign Sub-Custodian to deliver,
the Currency to be sold on the date on which such delivery is to be made, as set
forth in the Certificate, and shall receive, or instruct a Foreign Sub-Custodian
to receive, the Currency to be purchased on the date as set forth in the
Certificate.
<PAGE>
2. Where the Currency to be sold is to be delivered on the same day as
the Currency to be purchased, as specified in the Certificate or Oral
Instructions, the Custodian or a Foreign Sub-Custodian may arrange for such
deliveries and receipts to be made in accordance with the customs prevailing
from time to time among brokers or dealers in Currencies, and such receipt and
delivery may not be completed simultaneously. The Trust assumes all
responsibility and liability for all credit risks involved in connection with
such receipts and deliveries, which responsibility and liability shall continue
until the Currency to be received by the Trust has been received in full.
3. Any FX Transaction effected by the Custodian in connection with this
Agreement may be entered with the Custodian, any office, branch or subsidiary of
The Bank of New York Company, Inc., or any Foreign Sub-Custodian acting as
principal or otherwise through customary banking channels. The Trust may issue a
standing Certificate with respect to FX Transaction but the Custodian may
establish rules or limitations concerning any foreign exchange facility made
available to the Trust. The Trust shall bear all risks of investing in
Securities or holding Currency. Without limiting the foregoing, the Trust shall
bear the risks that rules or procedures imposed by a Foreign Sub-Custodian or
foreign depositories, exchange controls, asset freezes or other laws, rules,
regulations or orders shall prohibit or impose burdens or costs on the transfer
to, by or for the account of the Trust of Securities or any cash held outside
the Trust's jurisdiction or denominated in Currency other than its home
jurisdiction or the conversion of cash from one Currency into another currency.
The Custodian shall not be obligated to substitute another Currency for a
Currency (including a Currency that is a component of a Composite Currency Unit)
whose transferability, convertibility or availability has been affected by such
law, regulation, rule or procedure. Neither the Custodian nor any Foreign
Sub-Custodian shall be liable to the Trust for any loss resulting from any of
the foregoing events.
<PAGE>
ARTICLE XVIII.
CONCERNING THE CUSTODIAN
1. Except as hereinafter provided, or as provided in Article XVI,
neither the Custodian nor its nominee shall be liable for any loss or damage,
including counsel fees, resulting from its action or omission to act or
otherwise, either hereunder or under any Margin Account Agreement, except for
any such loss or damage arising out of its own negligence or willful misconduct.
In no event shall the Custodian be liable to the Trust or any third party for
special, indirect or consequential damages or lost profits or loss of business,
arising under or in connection with this Agreement, even if previously informed
of the possibility of such damages and regardless of the form of action. The
Custodian may, with respect to questions of law arising hereunder or under any
Margin Account Agreement, apply for and obtain the advice and opinion of counsel
to the Trust, or of its own counsel, at the expense of the Trust, and shall be
fully protected with respect to anything done or omitted by it in good faith in
conformity with such advice or opinion. The Custodian shall be liable to the
Trust for any loss or damage resulting from the use of the Book-Entry System or
any Depository arising by reason of any negligence or willful misconduct on the
part of the Custodian or any of its employees or agents.
2. Without limiting the generality of the foregoing, the Custodian
shall be under no obligation to inquire into, and shall not be liable for:
(a) the validity of the issue of any Securities purchased,
sold, or written by or for the Trust, the legality of the purchase, sale or
writing thereof, or the propriety of the amount paid or received therefor;
(b) the legality of the sale or redemption of any Shares, or
the propriety of the amount to be received or paid therefor;
(c) the legality of the declaration or payment of any dividend
by the Trust;
(d) the legality of any borrowing by the Trust using Securities
as collateral;
(e) the legality of any loan of portfolio Securities, nor shall
the Custodian be under any duty or obligation to see to it that any cash
collateral delivered to it by a broker, dealer, or financial institution or held
by it at any time as a result of such loan of portfolio Securities of the Trust
is adequate collateral for the Trust against any loss it might sustain as a
result of such loan. The Custodian specifically, but not by way of limitation,
shall not be under any duty or obligation periodically to check or notify the
Trust that the amount of such cash collateral held by it for the Trust is
sufficient collateral for the Trust, but such duty or obligation shall be the
sole responsibility of the Trust. In addition, the Custodian shall be under no
duty or obligation to see that any broker, dealer or financial institution to
which portfolio Securities of the Trust are lent pursuant to Article X of this
Agreement makes payment to it of any dividends or interest which are payable to
or for the account of the Trust during the period of such loan or at the
termination of such loan, provided, however, that the Custodian shall promptly
notify the Trust in the event that such dividends or interest are not paid and
received when due; or
(f) the sufficiency or value of any amounts of money and/or
Securities held in any Margin Account, Senior Security Account or Collateral
Account in connection with transactions by the Trust. In addition, the Custodian
shall be under no duty or obligation to see that any broker, dealer, futures
commission merchant or Clearing Member makes payment to the Trust of any
variation margin payment or similar payment which the Trust may be entitled to
receive from such broker, dealer, futures commission merchant or Clearing
Member, to see that any payment received by the Custodian from any broker,
dealer, futures commission merchant or Clearing Member is the amount the Trust
is entitled to receive, or to notify the Trust of the Custodian's receipt or
non-receipt of any such payment.
<PAGE>
3. The Custodian shall not be liable for, or considered to be the
Custodian of, any money, whether or not represented by any check, draft, or
other instrument for the payment of money, received by it on behalf of the Trust
until the Custodian actually receives and collects such money directly or by the
final crediting of the account representing the Trust's interest at the
Book-Entry System or the Depository.
4. The Custodian shall have no responsibility and shall not be liable
for ascertaining or acting upon any calls, conversions, exchange offers,
tenders, interest rate changes or similar matters relating to Securities held in
the Depository, unless the Custodian shall have actually received timely notice
from the Depository. In no event shall the Custodian have any responsibility or
liability for the failure of the Depository to collect, or for the late
collection or late crediting by the Depository of any amount payable upon
Securities deposited in the Depository which may mature or be redeemed, retired,
called or otherwise become payable. However, upon receipt of a Certificate from
the Trust of an overdue amount on Securities held in the Depository the
Custodian shall make a claim against the Depository on behalf of the Trust,
except that the Custodian shall not be under any obligation to appear in,
prosecute or defend any action, suit or proceeding in respect to any Securities
held by the Depository which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
5. The Custodian shall not be under any duty or obligation to take
action to effect collection of any amount due to the Trust from the Transfer
Agent of the Trust nor to take any action to effect payment or distribution by
the Transfer Agent of the Trust of any amount paid by the Custodian to the
Transfer Agent of the Trust in accordance with this Agreement.
6. The Custodian shall not be under any duty or obligation to take
action to effect collection of any amount if the Securities upon which such
amount is payable are in default, or if payment is refused after due demand or
presentation, unless and until (i) it shall be directed to take such action by a
Certificate and (ii) it shall be assured to its satisfaction of reimbursement of
its costs and expenses in connection with any such action.
7. The Custodian may in addition to the employment of Foreign
Sub-Custodians pursuant to Article XVI appoint one or more banking institutions
as Depository or Depositories, as Sub-Custodian or Sub-Custodians, or as
Co-Custodian or Co-Custodians including, but not limited to, banking
institutions located in foreign countries, of Securities and money at any time
owned by the Trust, upon such terms and conditions as may be approved in a
Certificate or contained in an agreement executed by the Custodian, the Trust
and the appointed institution.
8. The Custodian shall not be under any duty or obligation (a) to
ascertain whether any Securities at any time delivered to, or held by it or by
any Foreign Sub-Custodian, for the account of the Trust and specifically
allocated to a Series are such as properly may be held by the Trust or such
Series under the provisions of its then current prospectus, or (b) to ascertain
whether any transactions by the Trust, whether or not involving the Custodian,
are such transactions as may properly be engaged in by the Trust.
9. The Custodian shall be entitled to receive and the Trust agrees to
pay to the Custodian all out-of-pocket expenses and such compensation as may be
agreed upon from time to time between the Custodian and the Trust. The Custodian
may charge such compensation and any expenses with respect to a Series incurred
by the Custodian in the performance of its duties pursuant to such agreement
against any money specifically allocated to such Series. Unless and until the
Trust instructs the Custodian by a Certificate to apportion any loss, damage,
liability or expense among the Series in a specified manner, the Custodian shall
also be entitled to charge
<PAGE>
against any money held by it for the account of a Series such Series' pro rata
share (based on such Series, net asset value at the time of the charge to the
aggregate net asset value of all Series at that time) of the amount of any loss,
damage, liability or expense, including counsel fees, for which it shall be
entitled to reimbursement under the provisions of this Agreement. The expenses
for which the Custodian shall be entitled to reimbursement hereunder shall
include, but are not limited to, the expenses of sub-custodians and foreign
branches of the Custodian incurred in settling outside of New York City
transactions involving the purchase and sale of Securities of the Trust.
10. The Custodian shall be entitled to rely upon any Certificate,
notice or other instrument in writing received by the Custodian and reasonably
believed by the Custodian to be a Certificate. The Custodian shall be entitled
to rely upon any Oral Instructions actually received by the Custodian
hereinabove provided for. The Trust agrees to forward to the Custodian a
Certificate or facsimile thereof confirming such Oral Instructions in such
manner so that such Certificate or facsimile thereof is received by the
Custodian, whether by hand delivery, telecopier or other similar device, or
otherwise, by the close of business of the same day that such Oral Instructions
are given to the Custodian. The Trust agrees that the fact that such confirming
instructions are not received, or that contrary instructions are received, by
the Custodian shall in no way affect the validity of the transactions or
enforceability of the transactions hereby authorized by the Trust. The Trust
agrees that the Custodian shall incur no liability to the Trust in acting upon
Oral Instructions given to the Custodian hereunder concerning such transactions
provided such instructions reasonably appear to have been received from an
Authorized Person.
11. The Custodian shall be entitled to rely upon any instrument,
instruction or notice received by the Custodian and reasonably believed by the
Custodian to be given in accordance with the terms and conditions of any Margin
Account Agreement. Without limiting the generality of the foregoing, the
Custodian shall be under no duty to inquire into, and shall not be liable for,
the accuracy of any statements or representations contained in any such
instrument or other notice including, without limitation, any specification of
any amount to be paid to a broker, dealer, futures commission merchant or
Clearing Member.
12. The books and records pertaining to the Trust which are in the
possession of the Custodian shall be the property of the Trust. Such books and
records shall be prepared and maintained as required by the Investment Company
Act of 1940, as amended, and other applicable securities laws and rules and
regulations. The Trust, or the Trust's authorized representatives, shall have
access to such books and records during the Custodian's normal business hours.
Upon the reasonable request of the Trust, copies of any such books and records
shall be provided by the Custodian to the Trust or the Trust's authorized
representative, and the Trust shall reimburse the Custodian its expenses of
providing such copies. Upon reasonable request of the Trust, the Custodian shall
provide in hard copy or on micro-film, whichever the Custodian elects, any
records included in any such delivery which are maintained by the Custodian on a
computer disc, or are similarly maintained, and the Trust shall reimburse the
Custodian for its expenses of providing such hard copy or micro-film.
13. The Custodian shall provide the Trust with any report obtained by
the Custodian on the system of internal accounting control of the Book-Entry
System, the Depository or O.C.C., and with such reports on its own systems of
internal accounting control as the Trust may reasonably request from time to
time.
<PAGE>
14. The Trust agrees to indemnify the Custodian against and save the
Custodian harmless from all liability, claims, losses and demands whatsoever,
including attorney's fees, howsoever arising or incurred because of or in
connection with this Agreement, including the Custodian's payment or non-payment
of checks pursuant to paragraph 6 of Article XIII as part of any check
redemption privilege program of the Trust, except for any such liability, claim,
loss and demand arising out of the Custodian's own negligence or willful
misconduct.
15. Subject to the foregoing provisions of this Agreement, including,
without limitation, those contained in Article XVI and XVII the Custodian may
deliver and receive Securities, and receipts with respect to such Securities,
and arrange for payments to be made and received by the Custodian in accordance
with the customs prevailing from time to time among brokers or dealers in such
Securities. When the Custodian is instructed to deliver Securities against
payment, delivery of such Securities and receipt of payment therefor may not be
completed simultaneously. The Trust assumes all responsibility and liability for
all credit risks involved in connection with the Custodian's delivery of
Securities pursuant to instructions of the Trust, which responsibility and
liability shall continue until final payment in full has been received by the
Custodian.
16. The Custodian shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied in this Agreement
against the Custodian.
ARTICLE XIX.
TERMINATION
1. Either of the parties hereto may terminate this Agreement by giving
to the other party a notice in writing specifying the date of such termination,
which shall be not less than sixty (60) days after the date of giving of such
notice. In the event such notice is given by the Trust, it shall be accompanied
by a copy of a resolution of the Board of Trustees of the Trust, certified by
the Secretary or any Assistant Secretary, electing to terminate this Agreement
and designating a successor custodian or custodians, each of which shall be a
bank or trust company having not less than $2,000,000 aggregate capital, surplus
and undivided profits. In the event such notice is given by the Custodian, the
Trust shall, on or before the termination date, deliver to the Custodian a copy
of a resolution of the Board of Trustees of the Trust, certified by the
Secretary or any Assistant Secretary, designating a successor custodian or
custodians. In the absence of such designation by the Trust, the Custodian may
designate a successor custodian which shall be a bank or trust company having
not less than $2,000,000 aggregate capital, surplus and undivided profits. Upon
the date set forth in such notice this Agreement shall terminate, and the
Custodian shall upon receipt of a notice of acceptance by the successor
custodian on that date deliver directly to the successor custodian all
Securities and money then owned by the Trust and held by it as Custodian, after
deducting all fees, expenses and other amounts for the payment or reimbursement
of which it shall then be entitled.
2. If a successor custodian is not designated by the Trust or the
Custodian in accordance with the preceding paragraph, the Trust shall upon the
date specified in the notice of termination of this Agreement and upon the
delivery by the Custodian of all Securities (other than Securities held in the
Book-Entry System which cannot be delivered to the Trust) and money then owned
by the Trust be deemed to be its own custodian and the Custodian shall thereby
be relieved of all duties and responsibilities pursuant to this Agreement, other
than the duty with respect to Securities held in the Book Entry System which
cannot be delivered to the Trust to hold such Securities hereunder in accordance
with this Agreement.
<PAGE>
ARTICLE XX.
MISCELLANEOUS
1. Annexed hereto as Appendix A is a Certificate signed by two of the
present Authorized Persons of the Trust under its seal, setting forth the names
and the signatures of the present Authorized Persons of the Trust. The Trust
agrees to furnish to the Custodian a new Certificate in similar form in the
event that any such present Authorized Person ceases to be an Authorized Person
of the Trust, or in the event that other or additional Authorized Persons are
elected or appointed. Until such new Certificate shall be received, the
Custodian shall be fully protected in acting under the provisions of this
Agreement or Oral Instructions upon the signatures of the Authorized Persons as
set forth in the last delivered Certificate.
2. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Custodian, shall be sufficiently given if
addressed to the Custodian and mailed or delivered to it at its offices at 90
Washington Street, New York, New York 10286, or at such other place as the
Custodian may from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Trust shall be sufficiently given if addressed
to the Trust and mailed or delivered to it at its office at the address for the
Trust first above written, or at such other place as the Trust may from time to
time designate in writing.
4. This Agreement may not be amended or modified in any manner except
by a written agreement executed by both parties with the same formality as this
Agreement and approved by a resolution of the Board of Trustees of the Trust.
5. This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Trust without the written consent
of the Custodian, or by the Custodian without the written consent of the Trust,
authorized or approved by a resolution of the Trust's Board of Trustees.
6. This Agreement shall be construed in accordance with the laws of the
State of New York without giving effect to conflict of laws principles thereof.
Each party hereby consents to the jurisdiction of a state or federal court
situated in New York City, New York in connection with any dispute arising
hereunder and hereby waives its right to trial by jury.
7. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers, thereunto duly authorized and their
respective seals to be hereunto affixed, as of the day and year first above
written.
TD WATERHOUSE TRUST
By:
--------------------
Attest:
------------
THE BANK OF NEW YORK
By:
--------------------
Name:
Title:
[SEAL]
Attest:
------------
<PAGE>
APPENDIX A
I, , and I, , of TD WATERHOUSE TRUST,
a Delaware business trust (the"Trust"), do hereby certify that:
The following persons have been duly authorized in conformity with the
Trust's Agreement and Declaration of Trust and By-Laws to execute any
Certificate, instruction, notice or other instrument on behalf of the Trust, and
the signatures set forth opposite their respective names are their true and
correct signatures:
Name Position Signature
- -------------------- ------------------- -----------------------
<PAGE>
APPENDIX B
SERIES
TD WATERHOUSE TRUST
TD Waterhouse Dow 30 Fund
<PAGE>
APPENDIX C
I, ____________, a Vice President with THE BANK OF NEW YORK do hereby
designate the following publications:
The Bond Buyer
Depository Trust Company Notices
Financial Daily Card Service
JJ Kenney Municipal Bond Service
London Financial Times
New York Times
Standard & Poor's Called Bond Record
Wall Street Journal
<PAGE>
EXHIBIT A
CERTIFICATION
The undersigned, George A. Rio, hereby certifies that he is the duly
elected and acting President of TD WATERHOUSE TRUST, a Delaware business trust
(the "Trust"), and further certifies that the following resolution was adopted
by the Board of Trustees of the Trust at a meeting duly held on September 8,
1999, at which a quorum was at all times present and that such resolution has
not been modified or rescinded and is in full force and effect as of the date
hereof.
RESOLVED, that The Bank of New York, as Custodian pursuant to
a Custody Agreement between The Bank of New York and the Trust dated as
of ___________, (the "Custody Agreement") is authorized and instructed
on a continuous and ongoing basis to deposit in the Book-Entry System,
as defined in the Custody Agreement, all securities eligible for
deposit therein, regardless of the Series to which the same are
specifically allocated, and to utilize the Book-Entry System to the
extent possible in connection with its performance thereunder,
including, without limitation, in connection with settlements of
purchases and sales of securities, loans of securities, and deliveries
and returns of securities collateral.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of TD
WATERHOUSE TRUST, as of the __ day of _______, 1999.
---------------------------
[SEAL]
<PAGE>
EXHIBIT B
CERTIFICATION
The undersigned, George A. Rio, hereby certifies that he is the duly
elected and acting President of TD WATERHOUSE TRUST, a Delaware business trust
(the "Trust"), and further certifies that the following resolution was adopted
by the Board of Trustees of the Trust at a meeting duly held on September 8,
1999, at which a quorum was at all times present and that such resolution has
not been modified or rescinded and is in full force and effect as of the date
hereof.
RESOLVED, that The Bank of New York, as Custodian pursuant to
a Custody Agreement between The Bank of New York and the Trust dated as
of ______, (the "Custody Agreement") is authorized and instructed on a
continuous and ongoing basis until such time as it receives a
Certificate, as defined in the Custody Agreement, to the contrary to
deposit in the Depository, as defined in the Custody Agreement, all
securities eligible for deposit therein, regardless of the Series to
which the same are specifically allocated, and to utilize the
Depository to the extent possible in connection with its performance
thereunder, including, without limitation, in connection with
settlements of purchases and sales of securities, loans of securities,
and deliveries and returns of securities collateral.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of TD
WATERHOUSE TRUST, as of the __ day of _______, 1999.
---------------------------
[SEAL]
<PAGE>
EXHIBIT B-1
CERTIFICATION
The undersigned, George A. Rio, hereby certifies that he is the duly
elected and acting President of TD WATERHOUSE TRUST, a Delaware business trust
(the "Trust"), and further certifies that the following resolution was adopted
by the Board of Trustees of the Trust at a meeting duly held on September 8,
1999, at which a quorum was at all times present and that such resolution has
not been modified or rescinded and is in full force and effect as of the date
hereof.
RESOLVED, that The Bank of New York, as Custodian pursuant to
a Custody Agreement between The Bank of New York and the Trust dated as
of _________, (the "Custody Agreement") is authorized and instructed on
a continuous and ongoing basis until such time as it receives a
Certificate, as defined in the Custody Agreement, to the contrary to
deposit in the Participants Trust Company as Depository, as defined in
the Custody Agreement, all securities eligible for deposit therein,
regardless of the Series to which the same are specifically allocated,
and to utilize the Participants Trust Company to the extent possible in
connection with its performance thereunder, including, without
limitation, in connection with settlements of purchases and sales of
securities, loans of securities, and deliveries and returns of
securities collateral.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of TD
WATERHOUSE TRUST, a Delaware business trust (the "Trust"), as of the ___ day of
_______.
---------------------------
[SEAL]
<PAGE>
EXHIBIT C
CERTIFICATION
The undersigned, George A. Rio, hereby certifies that he or she is the
duly elected and acting President of TD WATERHOUSE TRUST, a Delaware business
trust (the "Trust"), and further certifies that the following resolution was
adopted by the Board of Trustees of the Trust at a meeting duly held on
September 8, 1999, at which a quorum was at all times present and that such
resolution has not been modified or rescinded and is in full force and effect as
of the date hereof.
RESOLVED, that The Bank of New York, as Custodian pursuant to
a Custody Agreement between The Bank of New York and the Trust dated as
of ________, (the "Custody Agreement") is authorized and instructed on
a continuous and ongoing basis until such time as it receives a
Certificate, as defined in the Custody Agreement, to the contrary, to
accept, utilize and act with respect to Clearing Member confirmations
for Options and transaction in Options, regardless of the Series to
which the same are specifically allocated, as such terms are defined in
the Custody Agreement, as provided in the Custody Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of TD
WATERHOUSE TRUST, as of the ___ day of ____________, 1999.
---------------------------
[SEAL]
<PAGE>
EXHIBIT D
The undersigned, George A. Rio, hereby certifies that he or she is the
duly elected and acting President of TD WATERHOUSE TRUST, a Delaware business
trust (the "Trust"), further certifies that the following resolutions were
adopted by the Board of Trustees of the Trust at a meeting duly held on
September 8, 1999, at which a quorum was at all times present and that such
resolutions have not been modified or rescinded and are in full force and effect
as of the date hereof.
RESOLVED, that The Bank of New York, as Custodian pursuant to
the Custody Agreement between The Bank of New York and the Trust dated
as of _________ (the "Custody Agreement") is authorized and instructed
on a continuous and ongoing basis to act in accordance with, and to
rely on Instructions (as defined in the Custody Agreement).
RESOLVED, that the Trust shall establish access codes and
grant use of such access codes only to Authorized Persons of the Trust
as defined in the Custody Agreement, shall establish internal
safekeeping procedures to safeguard and protect the confidentiality and
availability of user and access codes, passwords and authentication
keys, and shall use Instructions only in a manner that does not
contravene the Investment Company Act of 1940, as amended, or the rules
and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of TD
WATERHOUSE TRUST, as of the ___ day of ___________.
---------------------------
[SEAL]
<PAGE>
APPENDIX B
SERIES
TD Waterhouse Dow 30 Fund
Exhibit (g)(2)
FORM OF FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of November __, 1999, between TD Waterhouse Trust
(the "Trust") and The Bank of New York ("BNY").
W I T N E S S E T H:
WHEREAS, the Trust desires to appoint BNY as a Foreign Custody Manager
on the terms and conditions contained herein;
WHEREAS, BNY desires to serve as a Foreign Custody Manager and perform
the duties set forth herein on the terms and condition contained herein;
NOW THEREFORE, in consideration of the mutual promises hereinafter
contained in this Agreement, the Trust and BNY hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
1. "BOARD" shall mean the board of directors or board of trustees, as
the case may be, of the Trust.
2. "ELIGIBLE FOREIGN CUSTODIAN" shall have the meaning provided in the
Rule.
3. "MONITORING SYSTEM" shall mean a system established by BNY to
fulfill the Responsibilities specified in clauses 1(d) and 1(e) of Article III
of this Agreement.
4. "QUALIFIED FOREIGN BANK" shall have the meaning provided in the
Rule.
5. "RESPONSIBILITIES" shall mean the responsibilities delegated to BNY
as a Foreign Custody Manager with respect to each Specified Country and each
Eligible Foreign Custodian selected by BNY, as such responsibilities are more
fully described in Article III of this Agreement.
6. "RULE" shall mean Rule 17f-5 under the Investment Company Act of
1940, as amended, as such Rule became effective on June 16, 1997, and as may
hereafter be amended from time to time.
7. "SECURITIES DEPOSITORY" shall mean any securities depository or
clearing agency within the meaning of Section (a)(1)(ii) or (a)(1)(iii) of the
Rule.
<PAGE>
8. "SPECIFIED COUNTRY" shall mean each country listed on Schedule I
attached hereto and each country, other than the United States, constituting the
primary market for a security with respect to which the Trust has given
settlement instructions to The Bank of New York as custodian (the "Custodian")
under its Custody Agreement with the Trust.
ARTICLE II
BNY AS A FOREIGN CUSTODY MANAGER
1. The Trust on behalf of its Board hereby delegates to BNY with
respect to each Specified Country the Responsibilities.
2. BNY accepts the Board's delegation of Responsibilities with respect
to each Specified Country and agrees in performing the Responsibilities as a
Foreign Custody Manager to exercise reasonable care, prudence and diligence such
as a person having responsibility for the safekeeping of the Trust's assets
would exercise.
3. BNY shall provide to the Board at such times as the Board deems
reasonable and appropriate based on the circumstances of the Trust's foreign
custody arrangements, but not less frequently than quarterly, written reports
notifying the Board of the placement of assets of the Trust with a particular
Eligible Foreign Custodian within a Specified Country and of any material change
in the arrangements (including, in the case of Qualified Foreign Banks, any
material change in any contract governing such arrangements and in the case of
Securities Depositories, any material change in the established practices or
procedures of such Securities Depositories) with respect to assets of the Trust
with any such Eligible Foreign Custodian.
ARTICLE III
RESPONSIBILITIES
1. Subject to the provisions of this Agreement, BNY shall with respect
to each Specified Country select an Eligible Foreign Custodian. In connection
therewith, BNY shall: (a) determine that assets of the Trust held by such
Eligible Foreign Custodian will be subject to reasonable care, based on the
standards applicable to custodians in the relevant market in which such Eligible
Foreign Custodian operates, after considering all factors relevant to the
safekeeping of such assets, including, without limitation, those contained in
Section (c)(1) of the Rule; (b) determine that the Trust's foreign custody
arrangements with each Qualified Foreign Bank are governed by a written contract
with the Custodian (or, in the case of a Securities Depository, by such a
contract, by the rules or established practices or procedures of the Securities
Depository, or by any combination of the foregoing) which will provide
reasonable care for the Trust's assets based on the standards specified in
paragraph (c)(1) of the Rule; (c) determine that each contract with a Qualified
Foreign Bank shall include the provisions specified in paragraph (c)(2)(i)(A)
through (F) of the Rule or, alternatively, in lieu of any or all of such
(c)(2)(i)(A) through (F) provisions, such other provisions as BNY determines
will provide, in their entirety, the same or a greater level of care and
protection for the assets of the Trust as such specified provisions; (d) monitor
pursuant to the Monitoring System the appropriateness of maintaining the assets
of the Trust with a particular Eligible Foreign Custodian pursuant to paragraph
(c)(1) of the Rule and in
<PAGE>
the case of a Qualified Foreign Bank, any material change in the contract
governing such arrangement and in the case of a Securities Depository, any
material change in the established practices or procedures of such Securities
Depository; and (e) advise the Trust promptly whenever an arrangement
(including, in the case of a Qualified Foreign Bank, any material change in the
contract governing such arrangement and in the case of a Securities Depository,
any material change in the established practices or procedures of such
Securities Depository) described in preceding clause (d) no longer meets the
requirements of the Rule. Anything in this Agreement to the contrary
notwithstanding, BNY shall in no event be deemed to have selected any Securities
Depository the use of which is mandatory by law or regulation or because
securities cannot be withdrawn from such Securities Depository, or because
maintaining securities outside the Securities Depository is not consistent with
prevailing custodial practices in the relevant market (each, a "Compulsory
Depository"); it being understood however, that for each Compulsory Depository
utilized or intended to be utilized by the Trust, BNY shall provide the Trust
from time to time with information addressing the factors set forth in Section
(c)(1) of the Rule and BNY's opinions with respect thereto so that the Trust may
determine the appropriateness of placing Trust assets therein. BNY shall also
provide to the Trust or its designee such other information relating to the
Specified Countries as may reasonably be requested by the Trust to assist in the
Trust's evaluation of Country Risk, including without limitation, information
relating to each Specified Country's custody and settlement practices.
2. (a) For purposes of Clauses (a) and (b) of preceding Section 1 of
this Article, with respect to Securities Depositories, it is understood that
such determination shall be made on the basis of, and limited by, publicly
available information with respect to each such Securities Depository.
(b) For purposes of clause (d) of preceding Section 1 of this Article,
BNY's determination of appropriateness shall not include, nor be deemed to
include, any evaluation of Country Risks associated with investment in a
particular country. For purposes hereof, "Country Risks" shall mean systemic
risks of holding assets in a particular country including, but not limited to,
(a) the use of Compulsory Depositories, (b) such country's financial
infrastructure, (c) such country's prevailing custody and settlement practices,
(d) nationalization, expropriation or other governmental actions, (e) regulation
of the banking or securities industry, (f) currency controls, restrictions,
devaluations or fluctuations, and (g) market conditions which affect the orderly
execution of securities transactions or affect the value of securities.
ARTICLE IV
REPRESENTATIONS
1. The Trust hereby represents that: (a) this Agreement has been duly
authorized, executed and delivered by the Trust, constitutes a valid and legally
binding obligation of the Trust enforceable in accordance with its terms, and no
statute, regulation, rule, order, judgment or contract binding on the Trust
prohibits the Trust's execution or performance of this Agreement; (b) this
Agreement has been approved and ratified by the Board at a meeting duly called
and at which a quorum was at all times present; and (c) the Board or its
investment advisor has considered the Country Risks associated with investment
in each Specified Country and will
<PAGE>
have considered such risks prior to any settlement instructions being given to
the Custodian with respect to any other Specified Country.
2. BNY hereby represents that: (a) BNY is duly organized and existing
under the laws of the State of New York, with full power to carry on its
businesses as now conducted, and to enter into this Agreement and to perform its
obligations hereunder; (b) this Agreement has been duly authorized, executed and
delivered by BNY, constitutes a valid and legally binding obligation of BNY
enforceable in accordance with its terms, and no statute, regulation, rule,
order, judgment or contract binding on BNY prohibits BNY's execution or
performance of this Agreement; and (c) BNY has established the Monitoring
System.
ARTICLE V
CONCERNING BNY
1. BNY shall not be liable for any costs, expenses, damages,
liabilities or claims, including attorneys' and accountants' fees, sustained or
incurred by, or asserted against, the Trust except to the extent the same arises
out of the failure of BNY to exercise the care, prudence and diligence required
by Section 2 of Article II hereof. In no event shall BNY be liable to the Trust,
the Board, or any third party for special, indirect or consequential damages, or
for lost profits or loss of business, arising in connection with this Agreement.
2. The Trust shall indemnify BNY and hold it harmless from and against
any and all costs, expenses, damages, liabilities or claims, including
reasonable attorneys' and accountants' fees, sustained or incurred by, or
asserted against, BNY by reason or as a result of any action or inaction, or
arising out of BNY's performance hereunder, provided that the Trust shall not
indemnify BNY to the extent any such costs, expenses, damages, liabilities or
claims arises out of BNY's failure to exercise the reasonable care, prudence and
diligence required by Section 2 of Article II hereof, including without
limitation, in the event of BNY's negligence or willful misconduct.
3. For its services hereunder, the Trust agrees to pay to BNY such
compensation and out-of-pocket expenses as shall be mutually agreed.
4. BNY shall have only such duties as are expressly set forth herein.
In no event shall BNY be liable for any Country Risks associated with
investments in a particular country.
ARTICLE VI
MISCELLANEOUS
1. This Agreement constitutes the entire agreement between the Trust
and BNY, and no provision in the Custody Agreement between the Trust and the
Custodian shall affect the duties and obligations of BNY hereunder, nor shall
any provision in this Agreement affect the duties or obligations of the
Custodian under the Custody Agreement.
2. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to BNY, shall be sufficiently given if received by it
at its offices at 90
<PAGE>
Washington Street, New York, New York 10286, or at such other place as BNY may
from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Trust shall be sufficiently given if received
by it at its offices at 100 Wall Street, New York, New York 10005 or at such
other place as the Trust may from time to time designate in writing.
4. In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
thereby. This Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties. This Agreement shall extend to and
shall be binding upon the parties hereto, and their respective successors and
assigns; provided however, that this Agreement shall not be assignable by either
party without the written consent of the other.
5. This Agreement shall be construed in accordance with the substantive
laws of the State of New York, without regard to conflicts of laws principles
thereof. The Trust and BNY hereby consent to the exclusive jurisdiction of a
state or federal court situated in New York City, New York in connection with
any dispute arising hereunder. The Trust and BNY each hereby irrevocably waives
any and all rights to trial by jury in any legal proceeding arising out of or
relating to this Agreement.
6. The parties hereto agree that in performing hereunder, BNY is acting
solely on behalf of the Trust and no contractual or service relationship shall
be deemed to be established hereby between BNY and any other person.
7. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
8. This Agreement shall terminate simultaneously with the termination
of the Custody Agreement between the Trust and the Custodian, and may otherwise
be terminated by either party giving to the other party a notice in writing
specifying the date of such termination, which shall be not less than thirty
(30) days after the date of such notice.
<PAGE>
IN WITNESS WHEREOF, the Trust and BNY have caused this Agreement to be
executed by their respective officers, thereunto duly authorized, as of the date
first above written.
TD WATERHOUSE TRUST
By: _____________________________
Title:
Tax Identification No.:
THE BANK OF NEW YORK
By: _____________________________
Title:
<PAGE>
SCHEDULE 1
Specified Countries
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 TD Waterhouse Dow 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;
<PAGE>
(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.
<PAGE>
(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-
<PAGE>
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
<PAGE>
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.
<PAGE>
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., 55 Water Street, New
York, New York 10041; or (b) if to the Trust, to: President, TD Waterhouse
Trust, 100 Wall Street, New York, New York 10005 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).
<PAGE>
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: __________________________________
Exhibit (h)(2)
TD WATERHOUSE TRUST
FORM OF SHAREHOLDER SERVICING PLAN ("PLAN")
Section 1. Upon the recommendation of TD Waterhouse Asset Management,
Inc. ("TD Waterhouse"), the investment manager of TD Waterhouse Trust (the
"Trust"), any officer of the Trust is authorized to execute and deliver, in the
name and on behalf of the Trust, written agreements based substantially on the
forms attached hereto as Appendix A or any other form duly approved by the
Trust's Board of Trustees ("Agreements") with securities dealers, financial
institutions, and other industry professionals that are dealers of record or
holders of record or that have a servicing relationship with the beneficial
owners of Trust shares ("Service Organizations") in any of the Trust's funds
offering such shares (the "Funds") provided that any modifications of services
listed in the Agreement shall be presented for approval or ratification by the
Trustees at the next regularly scheduled Board Meeting. Pursuant to such
Agreements, Service Organizations shall provide shareholder support services as
set forth therein to their clients who beneficially own shares of the Funds in
consideration of a fee, computed monthly in the manner set forth in the
Agreements, at an annual rate of up to .25% of the average daily net asset value
of the Trust shares beneficially owned by or attributable to such clients.
Certain affiliates of TD Waterhouse, including TD Waterhouse Investor Services,
Inc., are eligible to become Service Organizations and to receive fees under
this Plan. All expenses incurred by a Fund in connection with the Agreements and
the implementation of this Plan shall be borne entirely by the holders of the
shares of the particular Fund involved.
Section 2. TD Waterhouse shall monitor the arrangements pertaining to
the Trust's Agreements with Service Organizations. TD Waterhouse shall not,
however, be obligated by this Plan to recommend, and the Trust shall not be
obligated to execute, any Agreement with any qualifying Service Organization.
Section 3. Unless sooner terminated, this Plan shall continue in effect
for a period of one year from its date of execution and shall continue
thereafter for successive annual periods, provided that such continuance is
specifically approved by a majority of the Board of Trustees, including a
majority of the Trustees who are not "interested persons," as defined in the
Investment Company Act of 1940, as amended (the "Act"), of the Trust and have no
direct or indirect financial interest in the operation of this Plan or in any
Agreement related to this Plan (the "Disinterested Trustees").
Section 4. This Plan may be amended at any time with respect to any
Fund by the Trust's Board of Trustees, provided that any material amendment of
the terms of this Plan (including a material increase of the fee payable
hereunder) shall become effective only upon the approval of a majority of the
Disinterested Trustees.
Section 5. This Plan is terminable at any time with respect to any Fund
by vote of a majority of the Disinterested Trustees.
Section 6. The Trust will preserve copies of this Plan, Agreements, and
any written reports regarding this Plan presented to the Board of Trustees
(collectively, "Records") for a period of not less than six years from the end
of the fiscal year in which such Records were made and each such Record shall be
kept in an easily accessible place for the first two years of said
recordkeeping.
<PAGE>
Appendix A
FORM OF SHAREHOLDER SERVICES AGREEMENT
Dear Sirs:
You wish to enter into an Agreement with TD Waterhouse Trust (hereinafter
referred to as the "Trust"), a registered investment company, as defined in the
Investment Company Act of 1940, as amended (the "Act"), with certain portfolios
of the Trust (each a "Fund", collectively the "Funds"), for servicing
shareholders of, and administering shareholder accounts in the Trust.
The terms and conditions of this Agreement are as follows:
1. You agree to provide shareholder and administrative services for your clients
who own shares of the Trust ("clients"), which services may include, without
limitation: providing general shareholder liaison services, including responding
to shareholder inquiries; assisting to the extent necessary with the
transmission of semi-annual and annual reports and annual tax reporting
information to shareholders; assisting clients in changing dividend options,
account designations and addresses; performing sub-accounting; establishing and
maintaining shareholder accounts and records; providing periodic statements
and/or reports showing a client's account balance and integrating such
statements with those of other transactions and balances in the client's other
accounts serviced by you; arranging for bank wires; and providing such other
information and services as the Trust reasonably may request, to the extent you
are permitted by applicable statute, rule or regulation. You represent and
warrant to, and agree with the Trust, that the compensation payable to you
hereunder, together with any other compensation payable to you by clients in
connection with the investment of their assets in shares of the Trust, will be
properly disclosed by you to your clients, will be authorized by your clients
and will not result in an excessive or unauthorized fee to you. You will act
solely as agent for, upon the order of, and for the account of, your clients.
2. You shall provide such office space and equipment, telephone facilities and
personnel (which may be all or any part of the space, equipment and facilities
currently used in your business, or all or any personnel employed by you) as is
necessary or beneficial for providing information and services to the Trust's
shareholders, and to assist the Trust in servicing accounts of clients. You
shall transmit promptly to clients all communications sent to you for
transmittal to clients by or on behalf of the Trust, or the Trust's investment
adviser, distributor, custodian or transfer or dividend disbursing agent.
3. You agree that neither you nor any of your employees or agents are authorized
to make any representation concerning the Trust, the Funds or the shares of the
Trust, except those contained in the then current Prospectus or Statement of
Additional Information ("SAI") for such Trust, copies of which will be supplied
by the Trust to you in reasonable quantities upon request. You shall have no
authority to act as agent for the Trust.
4. This agreement may be amended only by written instruments signed by both
parties. The Trust reserves the right, at its discretion and without notice, to
suspend the sale of shares or withdraw the sale of shares of any or all of the
Funds.
<PAGE>
5. This Agreement is terminable without penalty, at any time, by a majority of
the Trust's Trustees who are not "interested persons" (as defined in the Act)
and have no direct or indirect financial interest in this Agreement. This
Agreement is terminable without penalty upon 15 days' notice by either party. In
addition, the Trust may terminate this Agreement as to any or all Funds
immediately, without penalty, if the present investment adviser of such Fund(s)
ceases to serve the Fund(s) in such capacity. Notwithstanding anything contained
herein, if you fail to perform the shareholder servicing and administrative
functions contemplated herein by the Trust, this Agreement shall be terminable
effective upon receipt of notice thereof by you. This Agreement also shall
terminate automatically in the event of its assignment (as defined in the Act).
6. In consideration of the services and facilities described herein, you shall
be entitled to receive from the Trust, and the Trust agrees to pay to you, the
fees described as payable to you in the Trust's Shareholder Services Plan and
Prospectus and related Statement of Additional Information. You understand that
any payments pursuant to this Agreement shall be paid only so long as this
Agreement and such Plan are in effect. You agree that no Director, officer or
shareholder of the Trust shall be liable individually for the performance of the
obligations hereunder or for any such payments.
7. You agree to comply with and to provide to the Trust such information
relating to your services hereunder as may be required to be maintained by the
Trust, under applicable federal or state laws, and the rules, regulations,
requirements or conditions of applicable regulatory and self-regulatory agencies
or authorities.
8. This Agreement shall not constitute either party the legal representative of
the other, nor shall either party have the right or authority to assume, create
or incur any liability or any obligation of any kind, express or implied,
against or in the name of or in the name of or on behalf of the other party.
9. All notices or other communications hereunder to either party shall be in
writing and shall be deemed sufficient if mailed to such party at the address of
such party set forth on page four of this Agreement or at such other address as
such party may be designated by written notice to the other or by telex,
telecopier, telegram or similar means of same day delivery (with a confirming
copy by mail as provided herein).
10. This Agreement shall be construed in accordance with the internal laws of
the State of New York, without giving effect to principles of conflict of laws.
TD WATERHOUSE TRUST
100 WALL STREET
NEW YORK, NY 10005
- ----------------------------------------- -----------------------
By: Date
For:
- ------------------------------------------------------------------------
- ------------------------------------------------------------------------
Address of Principal Office
<PAGE>
- ------------------------------------------------------------------------
City State Zip Code
By: Its:
- ------------------------------- ----------------- --------------
Authorized Signature Title Date
- -------------------------------
Print Name
<PAGE>
FORM OF SHAREHOLDER SERVICES AGREEMENT
FOR WATERHOUSE AFFILIATED BROKER/DEALERS
Dear Sirs:
You wish to enter into an Agreement with TD Waterhouse Trust, (hereinafter
referred to as the "Trust"), a registered investment company, as defined in the
Investment Company Act of 1940, as amended (the "Act"), with certain portfolios
of the Trust (each a "Fund", collectively the "Funds"), for servicing
shareholders of, and administering shareholder accounts in the Trust.
The terms and conditions of this Agreement are as follows:
1. You agree to provide shareholder and administrative services for your clients
who own shares of the Trust ("clients"), which services may include, without
limitation: providing general shareholder liaison services, including responding
to shareholder inquiries; assisting to the extent necessary with the
transmission of semi-annual and annual reports and annual tax reporting
information to shareholders; assisting clients in changing dividend options,
account designations and addresses; performing sub-accounting; establishing and
maintaining shareholder accounts and records; providing periodic statements
and/or reports showing a client's account balance and integrating such
statements with those of other transactions and balances in the client's other
accounts serviced by you; arranging for bank wires; and providing such other
information and services as the Trust reasonably may request, to the extent you
are permitted by applicable statute, rule or regulation. You represent and
warrant to, and agree with the Trust, that the compensation payable to you
hereunder, together with any other compensation payable to you by clients in
connection with the investment of their assets in shares of the Trust, will be
properly disclosed by you to your clients, will be authorized by your clients
and will not result in an excessive or unauthorized fee to you. You will act
solely as agent for, upon the order of, and for the account of, your clients.
2. You shall provide such office space and equipment, telephone facilities and
personnel (which may be all or any part of the space, equipment and facilities
currently used in your business, or all or any personnel employed by you) as is
necessary or beneficial for providing information and services to the Trust's
shareholders, and to assist the Trust in servicing accounts of clients. You
shall transmit promptly to clients all communications sent to you for
transmittal to clients by or on behalf of the Trust, or the Trust's investment
adviser, distributor, custodian or transfer or dividend disbursing agent.
3. You agree that neither you nor any of your employees or agents are authorized
to make any representation concerning the Trust, the Funds or the shares of the
Trust, except those contained in the then current Prospectus or Statement of
Additional Information ("SAI") for such Trust, copies of which will be supplied
by the Trust to you in reasonable quantities upon request. You shall have no
authority to act as agent for the Trust.
4. The Trust reserves the right, at its discretion and without notice, to
suspend the sale of shares or withdraw the sale of shares of any or all of the
Funds. This agreement may be amended only by written instruments signed by both
parties.
<PAGE>
5. You acknowledge that this Agreement shall become effective for a Trust only
following approval when approved by a vote of a majority of (i) the Trust's
Board of Trustees or Managing General Partners, as the case may be (collectively
"Trustees," individually "Director"), and (ii) Trustees who are not "interested
persons" (as defined in the 1940 Act) of the Trust and have no direct or
indirect financial interest in this Agreement.
6. This Agreement shall continue until the last day of the calendar year next
following the date of execution, continue for an initial two year term
commencing on the date hereof, and thereafter shall continue automatically for
successive annual periods ending on the last day of each calendar year. Such
continuance must be approved specifically at least annually by a vote of a
majority of (i) the Trust's Board of Trustees and (ii) Trustees who are not
"interested persons" (as defined in the Act) of the Trust and have no direct or
indirect financial interest in this Agreement. This Agreement is terminable
without penalty, at any time, by a majority of the Trust's Trustees who are not
"interested persons" (as defined in the Act) and have no direct or indirect
financial interest in this Agreement. This Agreement is terminable without
penalty upon 15 days notice by either party. In addition, the Trust may
terminate this Agreement as to any or all Funds immediately, without penalty, if
the present investment adviser of such Fund(s) ceases to serve the Fund(s) in
such capacity. Notwithstanding anything contained herein, if you fail to perform
the shareholder servicing and administrative functions contemplated herein by
the Trust, this Agreement shall be terminable effective upon receipt of notice
thereof by you. This Agreement also shall terminate automatically in the event
of its assignment (as defined in the Act).
7. In consideration of the services and facilities described herein, you shall
be entitled to receive from the Trust, and the Trust agrees to pay to you, the
fees described as payable to you in the Trust's Shareholder Services Plan and
Prospectus and related Statement of Additional Information. You understand that
any payments pursuant to this Agreement shall be paid only so long as this
Agreement and such Plan are in effect. You agree that no Director, officer or
shareholder of the Trust shall be liable individually for the performance of the
obligations hereunder or for any such payments.
8. You agree to comply with and to provide to the Trust such information
relating to your services hereunder as may be required to be maintained by the
Trust under, applicable federal or state laws, and the rules, regulations,
requirements or conditions of applicable regulatory and self-regulatory agencies
or authorities.
9. This Agreement shall not constitute either party the legal representative of
the other, nor shall either party have the right or authority to assume, create
or incur any liability or any obligation of any kind, express or implied,
against or in the name of or in the name of or on behalf of the other party.
10. All notices or other communications hereunder to either party shall be in
writing and shall be deemed sufficient if mailed to such party at the address of
such party set forth on page four of this Agreement or at such other address as
such party may be designated by written notice to the other or by telex,
telecopier, telegram or similar means of same day delivery (with a confirming
copy by mail as provided herein).
11. This Agreement shall be construed in accordance with the internal laws of
the State of New York, without giving effect to principles of conflict of laws.
FOR TD WATERHOUSE TRUST
100 WALL STREET
NEW YORK, NY 10005
<PAGE>
- ----------------------------------------- -----------------------
By: Date
For:
- ------------------------------------------------------------------------
- ------------------------------------------------------------------------
Address of Principal Office
- ------------------------------------------------------------------------
City State Zip Code
By: Its:
- ------------------------------- ----------------- --------------
Authorized Signature Title Date
- -------------------------------
Print Name
Exhibit (h)(3)
FORM OF ADMINISTRATION AGREEMENT
AGREEMENT made as of the ___ day of _______, 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 TD Waterhouse Dow 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)
<PAGE>
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
<PAGE>
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
<PAGE>
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 1940 Act) 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.
<PAGE>
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.,
100 Wall Street, New York, New York 10005; (b) if to the Administrator, to:
President, TD Waterhouse Investor Services, Inc., 100 Wall Street, New York, New
York 10005; or (c) if to the Trust, to: President, TD Waterhouse Trust, 100 Wall
Street, New York, New York 10005;.
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.
<PAGE>
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: ________________________________
Title:
TD WATERHOUSE INVESTOR SERVICES,
INC.
By:__________________________________
Title:
TD WATERHOUSE TRUST
By: ________________________________
Title:
Exhibit (h)(4)
FORM OF SUB-ADMINISTRATION AGREEMENT
SUB-ADMINISTRATION AGREEMENT made this ____ day of November, 1999 between TD
Waterhouse Investor Services, Inc. ("TD Waterhouse"), a Delaware corporation,
and Funds Distributor, Inc. ("FDI"), a Massachusetts corporation.
WHEREAS, TD Waterhouse provides certain administrative services for certain
open-end management investment companies registered under the Investment Company
Act of 1940, as amended (the "1940 Act") (the "Trust"), and to certain
portfolios of the Trust (each a "Fund", collectively, the "Funds"), as listed on
Schedule A, as such Schedule shall be automatically amended from time to time,
subject to Board of Director approval;
WHEREAS, TD Waterhouse serves as administrator for the Trust pursuant to an
Administration Agreement dated as of _________, 1999, as amended from time to
time;
WHEREAS, TD Waterhouse desires to retain FDI to assist it in performing
administrative services with respect to the shares of the beneficial interest
(the "Shares") of the Trust and FDI is willing to perform such services on the
terms and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the mutual agreements herein contained, the
parties agree as follows:
1. Services Provided by FDI. FDI will assist TD Waterhouse by providing services
to the Funds of the Trust, as listed in Exhibit A.
2. Services Provided by TD Waterhouse. In furtherance of the responsibilities
under this Agreement TD Waterhouse will:
(a) cause the Trust's service providers to furnish any and all
information and assist FDI in taking any other actions that may be
reasonably necessary in connection with FDI providing those services
listed in Exhibit A;
(b) cause the Trust's blue sky administrator to monitor sales of the
Shares to assure compliance with applicable state securities and Blue
Sky laws;
(c) cause the Trust's transfer agent to give necessary information for
the preparation of quarterly reports in a form satisfactory to FDI
regarding Rule 12b-1 fees, front-end sales loads, back-end sales loads,
if applicable, and other data regarding sales and sales loads as
required by the 1940 Act or as requested by the Board of Trustees of
the Trust;
(d) cause the Trust's transfer agent to provide FDI with all necessary
historical information so that FDI can calculate the maximum sales
charges payable by the Trust pursuant to the Conduct Rules of the
National Association of Securities Dealers, Inc. ("NASD") and the
actual sales charges paid by the Trust, if applicable; cause the
Trust's transfer agent to provide FDI with all of the necessary
information so that FDI can calculate the maximum sales charges payable
by the Trust pursuant to the Conduct Rules of the NASD and the actual
sales charges paid by the Trust, if applicable; and cause the Trust's
transfer agent to provide such information
<PAGE>
in a form satisfactory to FDI no less often than monthly for every
Fund and on a daily basis for any Fund where FDI determines that the
remaining limit is approaching zero, if applicable; and
(e) provide FDI with copies of, or access to, any documents that FDI
may reasonably request and will notify FDI as soon as possible of any
matter materially affecting FDI's performance of its services under
this Agreement.
3. Compensation; Reimbursement of Expenses. For the services rendered by FDI
hereunder, FDI shall receive a fee from TD Waterhouse as agreed by TD Waterhouse
and FDI from time to time as set forth in Schedule B attached hereto. This fee
will be payable in equal monthly installments on the second business day of each
month.
4. Effective Date and Term. This Agreement shall become effective with respect
to a Fund as of the date first written above (or, if a particular Fund is not in
existence on that date, on the date Funds Distributor, Inc. becomes
sub-administrator to the Trust; Schedule A to this Agreement shall be deemed
amended to include such Fund from and after such date).
This Agreement shall become effective as of the date hereof and will continue
for an initial two-year term and will continue thereafter so long as such
continuance is specifically approved at least annually (i) by the Trust's Board
or (ii) by a vote of a majority (as defined in the 1940 Act) of the Shares of
the Trust or the relevant Fund, as the case may be, provided that in either
event its continuance also is approved by a majority of the Board members who
are not "interested persons" (as defined in the 1940 Act) of any party to this
Agreement and who have no direct or indirect financial interest in this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval. This Agreement is terminable with respect to any Fund or any
Trust, without penalty, on not less than sixty days' notice, by the Trust's
Board of Trustees, by vote of a majority (as defined in the 1940 Act) of the
outstanding voting securities of such Trust, or by you. This Agreement shall
terminate automatically in the event of its "assignment" (as defined in the 1940
Act). This Agreement may be terminated by either party, on not less than 60 days
written notice, upon any material breach of this Agreement by the other party.
If FDI ceases to be the Sub-Administrator of any Fund before the fifth
anniversary of the date the Trust began its investment activities, TD Waterhouse
shall reimburse FDI an amount equal to the number resulting from multiplying the
Trust's total unamortized organizational expenses by a fraction, the numerator
of which is equal to the number of initial shares redeemed by FDI or its
affiliate and the denominator of which is equal to the number of initial shares
still outstanding as of the date of such redemption, as long as the
administrative position of the staff of the Securities and Exchange Commission
requires FDI to reimburse the Trust such amount. (Initial shares shall mean the
shares purchased by FDI or an affiliate to provide the initial seed capital to a
Trust pursuant to Section 14 of the 1940 Act.)
5. Standard of Care and Indemnification.
(a) TD Waterhouse will indemnify and hold harmless FDI, its officers,
employees and agents and any persons who control FDI (together "FDI and
its employees") and hold each of them harmless from any losses, claims,
damages or liabilities, or actions in respect thereof, to which FDI and
its employees may become subject, including amounts paid in settlement
with the prior written consent of TD Waterhouse, insofar as such
losses, claims, damages or liabilities, or actions in respect thereof,
arise out of or result from the failure of TD Waterhouse to comply with
the terms of this Agreement;
(b) FDI will indemnify and hold harmless TD Waterhouse, its officers,
employees and agents and any persons who control TD Waterhouse
(together "TD Waterhouse and its employees") and
<PAGE>
hold each of them harmless from any losses, claims, damages or
liabilities, or actions in respect thereof, to which TD Waterhouse and
its employees may become subject, including amounts paid in settlement
with the prior written consent of FDI, insofar as such losses, claims,
damages or liabilities, or actions in respect thereof, arise out of or
result from the failure of FDI to comply with the terms of this
Agreement;
TD Waterhouse will reimburse FDI and its employees for reasonable legal
or other expenses reasonably incurred by FDI and its employees in
connection with investigating or defending against any such loss,
claim, damage, liability or action. TD Waterhouse shall not be liable
to FDI for any action taken or omitted by FDI in bad faith, with
willful misfeasance or gross negligence, or with reckless disregard by
FDI of its obligations and duties hereunder. The indemnities in this
Section shall, upon the same terms and conditions, extend to and inure
to the benefit of each of the employees of FDI that serve as officers
or trustees of the Trust and to each of the directors and officers of
FDI and any person controlling FDI within the meaning of Section 15 of
the Securities Act of 1933 ("1933 Act") or Section 20 of the Securities
Exchange Act of 1934 ("1934 Act").
FDI will reimburse TD Waterhouse for reasonable legal or other expenses
reasonably incurred by TD Waterhouse in connection with investigating
or defending against any such loss, claim, damage, liability or action.
FDI shall not be liable to TD Waterhouse for any action taken or
omitted by TD Waterhouse in bad faith, with willful misfeasance or
gross negligence, or with reckless disregard by TD Waterhouse of its
obligations and duties hereunder. The indemnities in this Section
shall, upon the same terms and conditions, extend to and inure to the
benefit of each of the directors and officers of TD Waterhouse and any
person controlling TD Waterhouse within the meaning of Section 15 for
the 1933 Act or Section 20 of the 1934 Act.
(c)(i) Promptly after an indemnified party (or, if such indemnified
party is not a natural person, a responsible officer of such
indemnified party) receives notice or otherwise becomes aware of the
commencement of any action or other assertion of any losses, claims,
damages or liabilities by any third party, such indemnified party
shall, if a claim in respect thereof is to be made pursuant to this
Section 5, notify the indemnitor of the same in writing (such notice, a
"claim notice"); but the omission so to notify the indemnitor will not
relieve the indemnitor from any liability that it may have to such
indemnified party otherwise than under this Section 5. In the event
that the indemnified party notifies the indemnitor in writing of its
waiver of any right to indemnification pursuant to this Section 5 in
respect of any losses, claims, damages or liabilities or portion
thereof, the provisions of clause (ii) of this Section 5(c) shall not
apply.
(ii) Promptly following receipt of a claim notice, the indemnitor, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party and any others the indemnitor may designate in contesting such
losses, claims, damages or liabilities and shall pay the reasonable
fees and disbursements of such counsel related to such contest. In any
such contest, any indemnified party shall have the right to retain its
own counsel, but the reasonable fees and expenses of such counsel shall
be at the expense of such indemnified party unless (A) the indemnitor
and the indemnified party shall have mutually agreed to the retention
of such counsel or (B) the named parties to any such contest (including
any impleaded parties) include both the indemnitor and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the indemnitor shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees and expenses of more than one firm for
all such indemnified parties. The indemnitor may, at its option, at any
time upon written notice to the indemnified party, assume
<PAGE>
the responsibility for contesting any losses, claims, damages or
liabilities and may designate counsel satisfactory to the indemnitor in
connection therewith provided that the counsel so designated would have
no actual or potential conflict of interest in connection with such
representation. Unless it shall assume the responsibility for
contesting any losses, claims, damages or liabilities, the indemnitor
shall not be liable for any settlement or compromise of such losses,
claims, damages or liabilities or portion thereof which settlement or
compromise is effected without its written consent, but if settled or
compromised with such consent or if there be a final judgment for the
plaintiff asserting such losses, claims or liabilities, the indemnitor
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement, compromise or judgment. If the
indemnitor assumes responsibility for contesting any losses, claims,
damages or liabilities, it shall be entitled to settle or compromise
such losses, claims, damages or liabilities or portion thereof with the
consent of the indemnified party or, if such settlement or compromise
provides for release of the indemnified party in connection with all
matters relating to such losses, claims, damages or liabilities, or,
with respect to the settlement or compromise of a portion of such
losses, claims, damages or liabilities, all matters relating to such
portion of such losses, claims, damages or liabilities, that have been
asserted against the indemnified party by the other parties to such
settlement or compromise, without the consent of the indemnified party.
In the event that any expense paid by the indemnitor pursuant to this
Section 6(c) is subsequently determined to not be required to be borne
by the indemnitor, the indemnified party that received such payment
shall promptly refund the amount so paid to the indemnitor. If the
indemnitor assumes responsibility for contesting any losses, claims,
damages or liabilities, the indemnitor shall keep the indemnified party
apprised, on a current basis, of matters concerning such contest,
including without limitation (i) providing the indemnified party with
reasonable notice of and opportunity to be present in person and/or by
counsel at proceedings or discussions of settlement or compromise; (ii)
providing the indemnified party with copies of and opportunity to
comment on filings, papers or settlement agreements proposed to be
filed or served by or on behalf of the indemnitor; and (iii) providing
the indemnified party with copies of filings, papers and proposed
settlement agreements received by the indemnitor from or on behalf of
persons asserting such losses, claims, damages or liabilities.
(d) The obligation to indemnify and provide contribution pursuant to
this Section 6 shall survive the termination of this Agreement.
7. Record Retention and Confidentiality. FDI shall keep and maintain on behalf
of the Trust all books and records which the Trust and FDI are, or may be,
required to keep and maintain in connection with the services to be provided
hereunder pursuant to any applicable statutes, rules and regulations, including
without limitation Rules 31a-1 and 31a-2 under the 1940 Act. FDI further agrees
that all such books and records shall be the property of the Trust and to make
such books and records available for inspection by the Trust, by TD Waterhouse,
or by the Securities and Exchange Commission at reasonable times and otherwise
to keep confidential all books and records and other information relative to the
Trust and its shareholders; except when requested to divulge such information by
duly-constituted authorities or court process.
8. Rights of Ownership. All computer programs and procedures developed to
perform the services to be provided by FDI under this Agreement are the property
of FDI.
9. Return of Records. FDI may at its option at any time, and shall promptly upon
the demand of TD Waterhouse and/or the Trust, turn over to TD Waterhouse and/or
the Trust and cease to retain FDI's files, records and documents created and
maintained by FDI pursuant to this Agreement so long as FDI shall be able to
retain photocopies of such documents to the extent needed by FDI in the
performance of its services or for its legal protection. If not so turned over
to TD Waterhouse and/or the Trust, such
<PAGE>
documents and records will be retained by FDI for six years from the end of the
fiscal year of the Trust for which they were created. At the end of such
six-year period, such records and documents will be turned over to TD Waterhouse
and/or the Trust unless the Trust authorizes in writing the destruction of such
records and documents.
10. Representations of TD Waterhouse. TD Waterhouse represents and warrants to
FDI that this Agreement has been duly authorized by TD Waterhouse and, when
executed and delivered by TD Waterhouse, will constitute a legal, valid and
binding obligation of TD Waterhouse, enforceable against TD Waterhouse in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties.
11. Representations of FDI. FDI represents and warrants that this Agreement has
been duly authorized by FDI and, when executed and delivered by FDI, will
constitute a legal, valid and binding obligation of FDI, enforceable against FDI
in accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties.
12. Notices. All notices or other communications hereunder to either party shall
be in writing and shall be deemed sufficient if mailed to TD Waterhouse at the
following address: TD Waterhouse Investor Services, Inc., 100 Wall Street, New
York, New York 10005, Attention: President; and to FDI at the following address:
60 State Street, Suite 1300, Boston, MA 02109, Attention: President with a copy
to General Counsel or at such other address as such party may designate by
written notice to the other, or in either case if sent by telex, telecopier,
telegram or similar means of same day delivery (with a confirming copy by mail
as provided herein).
13. Headings. Paragraph headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
14. Assignment. This Agreement and the rights and duties hereunder shall not be
assignable by either of the parties hereto except by the specific written
consent of the other party.
15. Governing Law. This Agreement shall be governed by and provisions shall be
construed in accordance with the laws of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed all as of the day and year first above written.
TD WATERHOUSE INVESTOR SERVICES, INC.
By: ___________________________
Title: ________________________
FUNDS DISTRIBUTOR, INC.
By: ___________________________
Title: ________________________
<PAGE>
Dated: November __, 1999
SCHEDULE A TO THE
SUB-ADMINISTRATION AGREEMENT
BETWEEN
TD WATERHOUSE INVESTOR SERVICES, INC.
AND
FUNDS DISTRIBUTOR, INC.
NAME OF FUND
TD WATERHOUSE TRUST
TD Waterhouse Dow 30 Fund
TD WATERHOUSE INVESTOR SERVICES, INC.
By: __________________________
Title: ______________________
FUNDS DISTRIBUTOR, INC.
By: _________________________
Title: ________________________
<PAGE>
Dated: November __, 1999
SCHEDULE B
TO THE AGREEMENT
BETWEEN
TD WATERHOUSE INVESTOR SERVICES, INC.
AND
FUNDS DISTRIBUTOR, INC.
FDI's annual fee charged to and payable by TD Waterhouse as defined below is its
share of an annual complex-wide charge. The annual complex-wide charge is:
(a) an annual fee of $250,000 for all Covered Entities for Routine
Administrative Services, as defined in Exhibit A, payable in
equal monthly installments on the second business day of each
month; and
(b) for Extraordinary Administrative Services, as defined in Exhibit A,
for any Covered Entity:
(i) a flat fee to be negotiated after the scope of the project
has been accurately and completely defined; or
(ii) a fee for a particular project based on a blended hourly
rate of $75.00 per person. Only personnel with an Assistant
Vice President title or higher with FDI would bill on an
hourly basis.
Except as previously set forth, compensation under this Agreement shall be
calculated and accrued daily and the amounts of the daily accruals shall be paid
monthly in arrears. If this Agreement becomes effective subsequent to the first
day of a month or shall terminate before the last day of a month, compensation
for that part of the month this Agreement is in effect shall be prorated in a
manner consistent with the calculation of the fees as set forth above. In
addition, TD Waterhouse agrees to reimburse FDI for FDI's reasonable
out-of-pocket expenses as mutually agreed to by the parties from time to time.
A Covered Entity is any series of TD Waterhouse Family of Funds, Inc., National
Investors Cash Management Fund, Inc. and TD Waterhouse Trust and each other
future mutual fund (or series thereof) for which FDI provides administrative
services.
<PAGE>
EXHIBIT A
Administrative Services
Funds Distributor will provide the following administrative services:
Corporate and Secretarial Services
o Provide Secretary and the necessary complement of Assistant
Secretaries for the fund. These services will be provided
consistent with the procedures listed in Exhibit B.
o Maintain general corporate calendar. Track all legal and
compliance requirements through annual cycles.
o Four quarterly board meetings per year: o Prepare agenda and
background materials for legal approval o Make presentations o
Monitor annual approval requirements o Prepare extensive
background material for annual review of advisory fees o Prepare
minutes o Follow-up on matters raised at meetings
o Maintain Agreement and Declaration of Trust and By-Laws of the
Trust
o Prepare organizational board meeting materials
o Draft contracts, assisting in negotiation and planning, as
appropriate. For example negotiate, draft and keep current the
following contracts: (i) investment advisory and sub-advisory
contracts; (ii) Distribution Agreement; (iii) Bank Agreements;
(iv) Broker Dealer Agreements; (v) Transfer Agency Agreement;
(vi) Custody Agreement; (vii) Administration Agreement and
Sub-Administration Agreement; (viii) 12b-1 Plans and related
agreements; (ix) Shareholder Servicing Plans and Related
Agreements; (x) IRA Custodian Agreements; (xi) Bi-Party
Repurchase Agreements; (xii) Tri-Party Repurchase Agreements;
(xiii) Futures Account Agreement and Procedural Safekeeping
Agreement; (xiv) loan agreements; and (xv) various other
agreements and amendments.
SEC and Public Disclosure Assistance
o Prepare and file one annual amendment to the Trust's registration
statement, including updating prospectuses and SAIs.
o Coordinate/monitor, with assistance from the fund administrator
and fund accountant and any other relevant fund service
providers, EDGAR (Electronic Data Gathering Analysis and
Retrieval System) on-line filings related to post-effective
amendments, N-SARs, 24f-2, annual and semi-annual shareholders
reports.
o Review annual and semi-annual Shareholder Reports.
<PAGE>
o Provide legal assistance for shareholder communications.
o Shareholder Meetings o Draft Proxies o Organize, attend and keep
minutes o Work with the Transfer Agent on Solicitations and Vote
Tabulation o Provide legal presence at meetings
o Draft Proxy/Solicitation Documents on Form N-14 (Fund Mergers).
o Monitor and participate in the preparation of documents for
Exemptive Orders (e.g., Joint Repurchase Account), Revenue
Rulings (e.g., Multi-Class) and other state specific regulatory
orders (e.g., Florida Request for Technical Assistance).
o Filing advertising and sales literature with the appropriate
regulatory entities and providing all compliance review of such
materials.
Legal Consulting and Planning
o Provide general legal advice on matters relating to portfolio
management, fund operations, mutual fund sales, development of
advertising materials, changing or improving prospectus
disclosure, and any potential changes in the fund's investment
policies, operations, or structure.
o Maintain a continuing awareness of significant emerging regulatory
and legislative developments which may affect the fund, update the
advisor on those developments, and provide related planning
assistance.
o Develop or assist in developing guidelines and procedures to
improve overall compliance by the fund and its various agents.
o Provide advice with regard to fund litigation matters, routine
fund examinations and investigations by regulatory agencies.
o Provide advice regarding long term planning for the Trust
including the creation of new funds or portfolios, corporate
structural changes, mergers, acquisitions, and other asset
gathering plans including new distribution methods.
o Maintain effective communications with fund counsel, counsel to
the "non-interested" board members and to the fund's local
counsel.
o Create and implement timing and responsibility system for outside
legal counsel when necessary to implement major projects and the
legal management of such projects.
<PAGE>
o Monitor activities and billing practices of outside counsel
performing services for the fund or in connection with related
fund activities.
Compliance
o Review of all testing that is done by fund accountant to assist
the advisor in complying with fund prospectus guidelines and
limitations, 1940 Act requirements, and Internal Revenue Code
requirements.
o Review of monthly testing and compliance report created by fund
accountant including:
o Tax compliance testing for gross income, short three,
diversification, and single issuer,
o 5% diversification testing for tax and 1940 Act compliance
based on current market value and acquisition cost testing,
if required,
o Income available for distribution report, which includes
capital gains and interest income,
o Net investment income calculated on per-share basis each
month, and
o Prospectus and 1940 Act compliance testing-tests are
tailored to each individual fund's prospectus and tests
against the type and amount of securities held.
o Jointly create Compliance Manuals and workshops for advisory
personnel with the fund accountant.
o Consultation and advice for resolution of compliance questions
along with the investment advisor, the fund administrator, the
fund counsel and the fund accountant.
o Be actively involved with the management of SEC and other
regulatory examinations.
o Review with the investment advisor and fund administrator summary
reports created by the fund accountant of all compliance issues
to assure immediate compliance adjustments.
o Assist portfolio managers with compliance matters including
reviewing the Compliance Manual on a regular basis and attending
compliance meetings with the portfolio managers.
o Assist in developing guidelines and procedures to improve overall
compliance by the fund and its various agents.
o Maintain legal liaison with and provide legal advice and counsel
to fund regarding its relationships, contractual or otherwise,
with the various fund agents, such as the adviser, custodian,
transfer agents, and auditors with respect to their activities on
behalf of the fund.
o Advice regarding all fund distribution arrangements for
compliance with applicable banking and broker-dealer regulations.
o Provide other fund officers as requested (e.g. President and Vice
President).
o Maintaining the fund's code of ethics.
<PAGE>
Treasury Services
o Providing the Trust's Treasurer and the appropriate complement of
Assistant Treasurers to assume certain specified responsibilities
(these functions will be based upon the day to day work completed
by knowledgeable staff assembled by TD Waterhouse including the
fund accountant).
o Determining properly chargeable expenses and authorizing payment
of bills for each fund.
o Monitoring and recommending changes to expense accrual rates.
o Coordinate/monitor, with assistance from the investment adviser,
the fund accountant and any other relevant fund service provider,
all required financial materials for review by the board (for
example, items required by SEC Rule 2a-7, 10f-3, 17a-7, and 17e-1
reports, repurchase agreements, dealer lists, securities
transactions).
o Recommending dividends to be voted by the board
o Reviewing and monitoring mark-to-market comparisons for money
market funds that are generated by the fund accountant.
o Reviewing, signing off and filing all fund tax returns after such
returns have been prepared and signed by the fund's independent
auditors.
o Assisting (along with the fund accountant) the fund's advisor in
valuing securities which are not readily salable.
o Function as a liaison with the fund's custodian, fund accountant,
outside auditors and regulators, including managing the planning
and conducting of audits and examinations.
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.
<PAGE>
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 TD Waterhouse's 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.
<PAGE>
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.
<PAGE>
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 1940 Act)
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.
<PAGE>
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 1940 Act) 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.
100 Wall Street
New York, NY 10005
Attention: Michele R. Teichner
To Countrywide: Countrywide Fund Services, Inc.
312 Walnut Street, 21st Floor
Cincinnati, Ohio 45202
<PAGE>
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
<PAGE>
COUNTRYWIDE FUND SERVICES, INC.
By:_____________________________
Its: President
<PAGE>
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.
Exhibit (h)(6)
FORM OF STATE REGISTRATION SERVICES AGREEMENT
THIS AGREEMENT is made as of the ____ day of ________, 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;
<PAGE>
(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.
<PAGE>
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
100 Wall Street
New York, NY 10005
Attention: Michele R. Teichner
To Clear Sky:
Clear Sky Corporation
The Schrafft Center Annex
529 Main Street
Boston, MA 02129
Attention: Elizabeth A. Nystedt
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.
<PAGE>
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.
<PAGE>
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
- ------------------------ ----------------------------
Attest: Automated Business
Development Corporation
- ------------------------ ----------------------------
Exhibit (i) Opinion and Consent of Swidler Berlin Shereff Friedman, LLP
SWIDLER BERLIN SHEREFF FRIEDMAN, LLP
919 THIRD AVENUE
NEW YORK, NY 10022-9998
TELEPHONE (212)758-9500
FACSIMILE (212) 758-9526
Washington Office
3000 K Street, NW
Washington, DC 20007
November 5, 1999
TD Waterhouse Trust, on behalf of its
sole series, TD Waterhouse Dow 30 Fund
100 Wall Street
New York, New York 10005
Re: TD Waterhouse Dow 30 Fund
Ladies and Gentlemen:
We have acted as counsel to TD Waterhouse Trust, a Delaware
business trust (the "Trust"), on behalf of its sole series, TD Waterhouse Dow 30
Fund (the "Fund"), in connection with the creation of the Trust and certain
matters relating to the issuance of shares of the Fund (the "Fund Shares").
Capitalized terms used herein and not otherwise herein defined have the
respective defined meanings set forth in the Agreement and Declaration of Trust
of the Trust dated August 6, 1999 (the "Declaration of Trust").
In connection with this opinion, we have examined copies of
the following documents: (i) the Certificate of Trust of the Trust as filed in
the Office of the Secretary of State of the State of Delaware (the "State
Office") on or about August 6, 1999 (the "Certificate"); (ii) the Declaration of
Trust; (iii) the By-laws of the Trust (the "By-laws," and together with the
Declaration of Trust, the "Governing Documents"); (iv) the Notification of
Registration filed Pursuant to Section 8(a) of the Investment Company Act of
1940 on Form N-8A of the Trust filed with the Securities and Exchange Commission
(the "Commission") on August 6, 1999; and (v) the Registration Statement on Form
N-1A of the Trust filed with the Commission on August 6, 1999 (the "Registration
Statement"). In addition, representatives of this firm attended the
Organizational Meeting of the Board of Trustees of the Trust held on September
8, 1999.
In our examination of all such documents, certificates and
instruments, we have assumed the genuineness of all signatures, the legal
capacity of all signatories and the authenticity of all documents, certificates
and instruments submitted to us as originals, and the conformity to the
authentic originals of all documents, certificates and instruments submitted to
us as certified, conformed or photostatic copies. We have received oral
assurances ("Oral Assurances") from CT Corporation that the Office of Secretary
of State of the State of Delaware has confirmed that the Trust is as of the date
hereof in good standing in the State of Delaware.
<PAGE>
November 5, 1999
Page 2
Based upon the foregoing and in reliance thereon and subject
to the assumptions, limitations and qualifications set forth herein, we are of
the opinion that:
1. The Trust is a duly created and validly existing business
trust in good standing under the laws of the State of Delaware.
2. The issuance of the Fund Shares has been duly authorized on
behalf of the Trust and, when issued to shareholders following effectiveness of
the Registration Statement in accordance with the terms, conditions,
requirements and procedures set forth in the Governing Documents and in the
Registration Statement, will constitute legally issued, fully paid and
non-assessable shares of beneficial interest in the Trust.
3. Under the Delaware Code and the terms of the Declaration of
Trust, each shareholder of the Trust, in such capacity, will be entitled to the
same limitation of personal liability as that extended to stockholders of
private corporations for profit organized under the general corporation law of
the State of Delaware; provided, however, that we express no opinion with
respect to the liability of any shareholder who is, was or may become a named
Trustee of the Trust. Neither the existence nor exercise of the voting rights
granted to shareholders under the Declaration of Trust will, of itself, cause a
shareholder to be deemed a trustee of the Trust under the Delaware Code.
We are members of the Bar of the State of New York. Insofar as
the opinions set forth above relate to the law of the State of Delaware, we have
relied solely upon our reading of the Delaware Code as published in standard
compilations and upon the Oral Assurances.
We hereby consent to the filing of this opinion with the
Commission as a part of the Registration Statement and with any state securities
commission where such filing is required. We also consent to the reference to
our firm as counsel in the prospectus and statement of additional information
filed as a part thereof. In giving this consent we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended.
Very truly yours,
Swidler Berlin Shereff Friedman, LLP
SBSF:MKN;JLS;JHG;WHC
Exhibit (j)
FORM OF PURCHASE AGREEMENT
TD Waterhouse Family of Funds, Inc. (the "Company"), a Maryland
corporation, and TD Waterhouse Trust (the "Trust"), a Delaware business trust,
hereby agree with each other as follows:
1. The Trust, on behalf of its TD Waterhouse Dow 30 Fund (the "New
Fund"), hereby offers the Company, on behalf of its TD Waterhouse Dow 30 Fund
(the "Old Fund") and the Company hereby purchases one (1) share of the New Fund
at a price of $1.00 per share.
2. The Company is authorized and otherwise duly qualified to purchase
and hold such share and to enter into this Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the __ day of November, 1999.
TD Waterhouse Family of Funds, Inc.
ATTEST:
By:
- ----------------- -------------------
Name: George A. Rio
Title:President
TD Waterhouse Trust
ATTEST:
By:
- ----------------- -------------------
Name: George A. Rio
Title: President
Other Exhibit
POWER OF ATTORNEY
Each of the undersigned hereby constitutes and appoints Margery K.
Neale, Joel H. Goldberg and Richard H. Neiman, and each of them, with full power
to act, his or her true lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities (until revoked in writing) to sign any and
all amendment to the Registration Statement for TD Waterhouse Trust (including
post-effective amendments and amendments thereto), and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any state securities commissions,
granting unto said attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing, and ratifying and confirming all that
said attorneys-in-fact and agents, or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
/s/ Richard W. Dalrymple
Richard W. Dalrymple, Trustee
/s/ Carolyn B. Lewis,
Carolyn B. Lewis, Trustee
/s/ George F. Staudter
George F. Staudter, Trustee
/s/ Lawrence J. Toal
Lawrence J. Toal, Trustee
Dated: September 8, 1999
