SUB-TRANSFER AGENCY AND DIVIDEND
DISBURSING AGENCY AGREEMENT
AGREEMENT made as of the day of December, 1995 by and among
WATERHOUSE NATIONAL BANK, a national banking association (the "Bank"), NATIONAL
INVESTOR SERVICES CORP., a ("NISC"), and WATERHOUSE SECURITIES,
INC., a Delaware corporation ("Waterhouse Securities") (NISC and Waterhouse
Securities each may be referred to separately herein as a "Sub Agent" and
together as the "Sub-Agents").
WITNESSETH:
WHEREAS, the Bank serves as Transfer Agent and Dividend Disbursing Agent
for each of the three separate investment portfolios (each, a "Portfolio") of
Waterhouse Investors Cash Management Fund, Inc., a Maryland corporation and an
open-end diversified management investment company registered as such under the
Investment Company Act of 1940, as amended (the "Fund"), pursuant to a Transfer
Agency and Dividend Disbursing Agency Agreement dated as of , 1995 (the
"Transfer Agency Agreement"); and
WHEREAS, the Bank is authorized pursuant to the Transfer Agency Agreement
to delegate any or all of the services thereunder; and
WHEREAS, the Bank and the Sub-Agents contemplate that, pursuant to the
terms and provisions of this Agreement, following its organization and
qualification to perform the duties prescribed in this Agreement, NISC may
perform certain services as Sub-Transfer and Sub-Dividend Disbursing Agent for
the Fund on an ongoing basis, and that during the period prior to the
organization and qualification of NISC to act in such capacity, Waterhouse
Securities shall act as Sub-Transfer and Sub-Dividend Disbursing Agent for the
Fund; and
WHEREAS, the Bank desires to appoint each Sub-Agent to act as Sub-Transfer
Agent and Sub-Dividend Disbursing Agent for each Portfolio of the Fund upon, and
subject to, the terms and provisions of this Agreement; and
1
WHEREAS, each Sub-Agent 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 Bank and the Sub-Agents agree as follows:
1. Appointment of each Sub-Agent as Sub-Transfer Agent and Sub-Dividend
Disbursing Agent.
(a) The Bank hereby appoints NISC to act as Sub-Transfer Agent and
Sub-Dividend Disbursing Agent for each Portfolio of the Fund upon, and subject
to, the terms and provisions of this Agreement, provided that during the period
prior to the organization and qualification of NISC to perform its services
hereunder, Waterhouse Securities shall act as Sub-Transfer and Sub-Dividend
Disbursing Agent for each Portfolio upon, and subject to, the terms and
provisions of this Agreement.
(b) Each Sub-Agent hereby accepts the appointment as Sub-Transfer Agent
and Sub-Dividend Disbursing Agent for each Portfolio of the Fund, and agrees to
act as such upon, and subject to, the terms and provisions of this Agreement.
2. Definitions. In this Agreement:
(1) The term "Act" means the Investment Company Act of 1940, as
amended, and any rule or regulation thereunder;
(2) The term "Account" means any account of a Shareholder, or, if the
shares are held in an account in the name of Waterhouse Securities, Inc. or
other broker-dealer for benefit of an identified customer, such account, and
includes any Plan Account.
(3) The term "application" means an application made by a Shareholder
or prospective Shareholder respecting the opening of an Account;
(4) The term "Instruction" means an instruction in writing given on
behalf of the Fund to the Bank, and signed on behalf of the Fund by the
President, any Vice President, the Secretary or the Treasurer of the Fund or
other authorized person, and transmitted by the Bank to a Sub-Agent;
2
(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 Fund as from time to time in effect;
(7) The term "Shareholder" means a holder of record of Shares;
(8) The term "Shares" means shares of stock of the Fund, irrespective
of Portfolio.
3. Duties of each Sub-Agent as Sub-Transfer Agent and Sub-Dividend
Disbursing Agent.
(a) Subject to the other provisions of the Agreement, each Sub-Agent
hereby agrees to perform any or all of the following functions as Sub-Transfer
Agent and Sub-Dividend Disbursing Agent for each Portfolio as requested by the
Bank: (i) processing the issuance, transfer and redemption of Shares, and
recording the same in the appropriate Accounts; (ii) opening, maintaining,
servicing and closing Accounts; (iii) acting as agent for the Shareholders
and/or customers of Waterhouse Securities or other broker-dealer in connection
with Plan Accounts, upon the terms and subject to the conditions contained in
the Prospectus and application relating to the specific Plan Account; (iv)
exchanging the investment of an investor into or from the Shares of one or more
Portfolios of the Fund if and to the extent permitted by the Prospectus at the
direction of such investor; (v) examining and approving legal transfers; (vi)
replacing lost, stolen or destroyed certificates, if any, representing Shares,
in accordance with, and subject to, procedures and conditions adopted by the
Fund; (vii) furnishing confirmations of purchases and sales relating to Shares
as required by applicable law; (viii) furnishing appropriate periodic and year
end statements relating to Accounts, together with additional enclosures,
including appropriate income tax information and income tax forms duly
completed, as required by applicable law; (ix) mailing annual, semi-annual and
quarterly reports and dividend notices prepared by or on behalf of the Fund, and
mailing new Prospectuses upon their issue to
3
Shareholders as required by applicable law; (x) furnishing such periodic
statements of transactions effected by the Bank or a Sub-Agent on behalf of the
Bank, reconciliations, balances and summaries as the Fund may reasonably
request; (xi) withholding taxes on non-resident alien Accounts, and preparing
and filing U.S. Treasury Department Form 1099 and other appropriate forms as
required by applicable law with respect to dividends and distributions; and
(xii) processing dividend and distribution payments, including reinvesting
dividends for full and fractional shares and disbursing cash dividends, as
applicable.
(b) At the request of the Bank, each Sub-Agent shall act as proxy agent in
connection with the holding of annual, if any, and special meetings of
Shareholders, mailing such notices, proxies and proxy statements in connection
with the holding of such meetings as may be required by applicable law,
receiving and tabulating votes cast by proxy and communicating to the Fund the
results of such tabulation accompanied by appropriate certificates, and
preparing and furnishing to the Fund certified lists of Shareholders (of the
Fund or one or more of its Portfolios, as appropriate) as of such date, in such
form and containing such information as may be required by the Fund.
(c) Each Sub-Agent agrees to deal with, and answer in a timely manner, all
correspondence and inquiries relating to the functions of the Sub-Agent under
this Agreement with respect to Accounts.
(d) Each Sub-Agent agrees to furnish to the Fund or the Bank such
information at such intervals as is necessary for the Fund to comply with the
registration and/or the reporting requirements (including applicable escheat
laws) of the Securities and Exchange Commission, state securities or Blue Sky
authorities or other governmental authorities.
(e) Each Sub-Agent agrees to provide to the Fund and the Bank such
information as may reasonably be required to enable the Fund to reconcile the
number of outstanding Shares of each Portfolio among the Sub-Agent's records,
the records of the Bank and the account books of the Fund.
(f) Notwithstanding anything in the foregoing provisions of this section
3, each Sub-Agent agrees to perform its functions thereunder subject to such
modification (whether
4
in respect of particular cases or in any particular class of cases) as may from
time to time be contained in an Instruction.
4. Compensation. For the services provided by the Sub-Agents pursuant to
this Agreement, the Bank, and not the Fund or any Portfolio, shall pay the
Sub-Agents such compensation as shall be mutually agreed upon from time to time.
5. Maintenance of Records, Right of Inspection. In connection with the
performance of its duties hereunder, each Sub-Agent shall maintain such books
and records relating to transactions effected by such Sub-Agent as are required
by the Act, or by any other applicable provision of law, rule or regulation, to
be maintained by the Fund or its transfer agent with respect to transactions.
Each Sub-Agent shall preserve, or cause to be preserved, any such books and
records for such periods as may be required by any such law, rule or regulation
and as may be agreed upon from time to time between such Sub-Agent and the
Bank. In addition, each Sub-Agent agrees to maintain and preserve master files
and historical computer tapes on a daily basis in multiple separate locations a
sufficient distance apart to insure preservation of at least one copy of such
information. Each Sub-Agent agrees that it will, in a timely manner, make
available to, and permit, any officer, accountant, attorney or authorized agent
of the Fund or the Bank to examine and make transcripts and copies (including
photocopies and computer or other electronic information storage media and
print-outs) of, any and all of the books and records which are maintained
pursuant to this Agreement.
6. Confidential Relationship. Each Sub-Agent agrees that it will, on
behalf of itself and its officers and employees, treat all transactions
contemplated by this Agreement, and all information germane thereto, as
confidential and not to be disclosed to any person (other than the Shareholder
concerned, or the Fund or the Bank, or as may be disclosed in the examination of
any books or records by any person lawfully entitled to examine the same) except
as may be authorized by the Fund by way of an Instruction.
7. Indemnification.
(a) Neither Sub-Agent shall be liable to the Fund or any Portfolio for any
error of judgment or mistake of law or for any loss arising out of any act or
omission by such Sub-Agent in the performance of its duties hereunder. Nothing
herein contained shall be
5
construed to protect the Sub-Agents against any liability to the Fund, a
Portfolio, Shareholders or any investment adviser to the Fund to which the
respective Sub-Agent shall otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of its duties, or
by reckless disregard of its obligations and duties hereunder.
(b) To the extent provided in the Transfer Agency Agreement, the Fund has
agreed to indemnify and hold harmless the Bank, each Sub-Agent and each person,
if any, who controls a Sub-Agent within the meaning of the Act against all
charges, claims, expenses (including legal fees) and liabilities reasonably
incurred by the Bank and each Sub-Agent in connection with the performance of
its duties hereunder, except such as may arise from the Bank's or such
Sub-Agent's willful misfeasance, bad faith, gross negligence in the performance
of its duties or by reckless disregard of its obligations and duties hereunder;
and the Bank agrees to indemnify and hold harmless each Sub-Agent and each
person, if any, who controls such Sub-Agent within the meaning of the Act
against any and all such charges, claims, expenses and liabilities to the extent
indemnification by the Fund is not provided by reason of the foregoing
exception. Notwithstanding the above, however, a Sub-Agent shall not be
indemnified for any charges, claims, expenses and liabilities arising from or
out of such Sub-Agent's willful misfeasance, bad faith, gross negligence in the
performance of its duties or by reckless disregard of its obligations and duties
hereunder. Subject to the requirements of the Act, such expenses shall be paid
by the Fund or the Bank, as applicable, in advance of the final disposition of
any matter upon invoice by the Sub-Agent and receipt by the Fund or the Bank, as
applicable, of an undertaking from the Sub-Agent to repay such amounts if it
shall ultimately be established that the Sub-Agent is not entitled to payment of
such expenses hereunder.
(c) As used in this section 7, the term "Sub-Agent" shall include
directors, officers, agents and employees of each Sub-Agent.
8. Regarding the Sub-Agents.
(a) Each Sub-Agent warrants and represents that its officers and
supervisory personnel charged with carrying out its functions as Sub-Transfer
Agent and Dividend Disbursing Agent for the Fund possess the special skill and
technical knowledge appropriate for that purpose. Each Sub-Agent shall at all
times exercise due care and diligence in the
6
performance of its functions as Sub-Transfer Agent and Dividend Disbursing Agent
for the Fund. Each Sub-Agent agrees that, in determining whether it has
exercised due care and diligence, its conduct shall be measured by the standard
applicable to persons possessing such special skill and technical knowledge.
(b) Each Sub-Agent warrants and represents that it is duly authorized and
permitted to act as Sub-Transfer Agent and Sub-Dividend Disbursing Agent under
all applicable laws and that it will immediately notify the Bank of any
revocation of such authority or permission or of the commencement of any
proceeding or other action which may lead to such revocation.
9. Termination.
(a) This Agreement shall become effective as of the date first above
written and shall thereafter continue from year to year. This Agreement may be
terminated by the Bank with respect to a Sub-Agent or by a Sub-Agent (without
penalty to the Bank or such Sub-Agent) provided that the terminating party gives
the other party written notice of such termination at least sixty (60) days in
advance, except that the Bank may terminate this Agreement immediately upon
written notice to a Sub-Agent if the authority or permission of the Sub-Agent to
act as Sub-Transfer Agent and Sub-Dividend Disbursing Agent has been revoked or
if any proceeding or other action which the Bank reasonably believes will lead
to such revocation has been commenced.
(b) Upon termination of this Agreement with respect to either Sub-Agent,
such Sub-Agent shall deliver all unissued and canceled stock certificates
representing Shares, if any, remaining in its possession, and all Shareholder
records, books, stock ledgers, instruments and other documents (including
computer or other electronically stored information) made or accumulated in the
performance of its duties as Sub-Transfer Agent and Sub-Dividend Disbursing
Agent for the Fund along with a certified locator document clearly indicating
the complete contents therein, to such successor as may be specified in a notice
of termination or Instruction. Thereafter, the Sub-Agent shall bear no
responsibility for failure thereafter to produce any paper, record or document
so delivered and identified in the locator document, if and when required to be
produced.
7
10. Amendment. Except to the extent that the performance by a
Sub-Agent of its functions under this Agreement may from time to time be
modified by an Instruction, this Agreement may be amended or modified by the
parties hereto only if such amendment is specifically approved by the Board of
Directors of the Fund, including a majority of the directors of the Fund who are
not "interested persons" of the Fund within the meaning of the Act, and such
amendment is set forth in a written instrument executed by each of the parties
hereto.
11. Governing Law. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of the State of New York as at the
time in effect and the applicable provisions of the Act. To the extent that the
applicable law of the State of New York, or any of the provisions herein,
conflict with the applicable provisions of the Act, the latter shall control.
12. Counterparts. This Agreement may be executed by the parties hereto in
counterparts and if executed in more than one counterpart the separate
instruments shall constitute one agreement.
13. Notices. All notices or other communications hereunder to any party
shall be in writing and shall be deemed to be received on the earlier of the
date actually received or on the fourth day after the postmark if such notice is
mailed first class postage prepaid. Notice shall be addressed: (a) if to the
Bank, to: President, Waterhouse National Bank, 00 Xxxx Xxxxxx, Xxxxx Xxxxxx,
Xxx Xxxx 00000; (b) if to Waterhouse Securities, to: ; or (c) if
to NISC, to ; or to such other address as such party may designate
by written notice to the other. Notice also may be given by telex, telecopier,
telegram or similar means of same day delivery (with a confirming copy by mail
as provided herein).
14. Separate Portfolios. This Agreement shall be construed to be made
with respect to the Fund as a separate agreement with respect to each Portfolio,
and under no circumstances shall the rights, obligations or remedies with
respect to a particular Portfolio be deemed to constitute a right, obligation or
remedy applicable to any other Portfolio.
8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective duly authorized officers as of the day and year above
written.
WATERHOUSE NATIONAL BANK
By: ______________________________
WATERHOUSE SECURITIES, INC.
By: ______________________________
NATIONAL INVESTORS SERVICES CORP.
By: ______________________________
9
