AMENDED AND RESTATED FEE WAIVER AND EXPENSE REIMBURSEMENT RECOUPMENT AGREEMENT
AMENDED
AND RESTATED FEE WAIVER AND EXPENSE
REIMBURSEMENT
RECOUPMENT AGREEMENT
THIS AMENDED AND RESTATED AGEREEMENT
(“Agreement”) effective as of this 22
day of September, 2009, by and between TD Asset Management USA Funds
Inc., a Maryland corporation (the “Company”) and TDAM USA Inc., a Delaware
corporation (the “Investment Manager”).
WHEREAS, the Company is an open-end
management investment company, registered under the Investment Company Act of
1940, as amended (the “1940 Act”) currently consisting of twelve separate series
(the “Portfolios”); and
WHEREAS,
pursuant to the Investment Management Agreement between the Company, on behalf
of each series, and the Investment Manager, dated October 15, 1996, and amended
as of September 1, 2000, June 1, 2005, February 1, 2006, September 18, 2006,
June 17, 2008, March 10, 2009 and June 29, 2009 (the Investment Management
Agreement”), the Investment Manager renders investment advisory services to each
series for compensation based on the value of the average daily net assets of
such series;
WHEREAS,
each of TDAM Institutional Money Market Fund, TDAM Institutional U.S. Government
Fund and TDAM Institutional Municipal Money Market Fund, each a series of the
Company, currently issues its shares in three classes: Institutional Class,
Institutional Service Class and Commercial Class; TDAM Institutional Treasury
Obligations Money Market Fund, as series of the Company, currently issues its
share in four classes: Institutional Class, Institutional Service Class,
Commercial Class and Class A; and each of TDAM Short-Term Investment Fund and
TDAM Short-Term Bond Fund, each a series of the Company, currently issues a
single class of shares (each such series, a “Fund” and each such class, a
“Class”);
WHEREAS,
the parties hereto were parties to a Fee Waiver and Expense Reimbursement
Recoupment Agreement dates as of December 18, 2006 relating to the recoupment of
fees waived and expenses reimbursed by the Investment Manager with respect to
certain Funds and Classes of the Company;
WHEREAS,
the parties wish to enter into this amended and restated Agreement to prove for
the recoupment of fees waived and expenses reimbursed by the Investment Manager
with respect to certain additional Funds and Classes of the
Company;
WHEREAS,
the Investment Manager has voluntarily agreed to waive all or a portion of its
fee payable under the Investment Management Agreement and/or to pay or reimburse
each New Class for all or a portion of its expenses not otherwise required to be
borne or reimbursed by the Investment Manager (in each case, a “Voluntary
Waiver” and collectively, the “Voluntary Waivers”), so that the annualized ratio
of (i) total operating expenses for the Institutional Class of each of TDAM
Institutional Money Market Fund, TDAM Institutional U.S. Government Fund, TDAM
Institutional Municipal Money Market Fund and TDAM Institutional Treasury
Obligations Money Market Fund do not exceed 0.20% of its average daily net
assets; (ii) total operating expenses for the TDAM Institutional Service Class
of each of TDAM Institutional Money Market Fund, TDAM Institutional U.S.
Government Fund, TDAM Institutional Municipal Money Market Fund TDAM
Institutional Treasury Obligations Money Market Fund do not exceed 0.45% of its
average daily net assets; and (iii) total operating expenses for the Commercial
Class of each of TDAM Institutional Money Market Fund, TDAM Institutional U.S.
Government Fund, TDAM Institutional Municipal Money Market Fund do not exceed
0.85% of the average daily net assets of such class; (iv) total operating
expenses for the Commercial Class of TDAM Institutional Treasury Obligations
Money Market Fund do not exceed 0.95% of the average daily net assets
of such Class; (v) total operating expenses for Class A of TDAM Institutional
Treasury Obligations Money Market Fund do not exceed 0.75% of the
average daily net assets of such Class; (vi) total operating expenses for TDAM
Short-Term Investment Fund do not exceed 0.35% of its average daily net assets;
and (vii)total operating expenses for TDAM Short-Term Bond Fund do not exceed
0.43% of its average daily net assets (each, and “Expense Cap”), such
Voluntary Waivers being subject to cancellation or modification by the
Investment Manager at any time; and
WHEREAS,
the Investment Manager seeks to be reimbursed for amounts it waives or pays
under the Voluntary Waivers, subject to the limitations set out
herein.
NOW,
THEREFORE, the parties hereto agree as follows:
1. With
respect to each Fund and Class, any amount waived or paid by the Investment
Manager pursuant to a Voluntary Waiver (a “Waived Amount”) shall be repaid to
the Investment Manager by the respective Fund; provided , that a Fund shall not
repay any such Waived Amount to the Investment Manager if such payment shall
cause such Fund’s or the relevant Class’ total operating expenses (on an
annualized basis) to exceed the Expense Cap applicable to such Fund or Class as
the case may be, at the time the relevant Waived Amount was waived or reimbursed
by the Investment Manager; provided further, that no Waived Amount shall be
repaid to the Investment Manager more than two years after the end of the fiscal
year during which such Waived Amount was waived or reimbursed.
2. This
Agreement may not be assigned by the Company or the Investment Manager without
the consent of the other party.
3. This
Agreement may be executed in counterparts, each of which shall be an original
but all of which, taken together, shall constitute one and the same
agreement.
4. This Agreement may be amended by the
parties hereto only if such amendment is specifically approved by the Board of
Directors of the Company (the “Board”), including a majority of the Directors
who are not “interested persons” of the Company within the meaning of the 1940
Act and who have no direct or indirect interest in this Agreement, and such
amendment is set forth in a written instrument signed by each of the parties
hereto.
5. This
Agreement may not be terminated except by a written instrument signed by each of
the parties hereto.
6. 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 applicable laws or
regulations.
IN
WITNESS WHEREOF, the parties hereto have agreed to this Agreement to be executed
as of the day and year first set forth above.
/s/ Xxxx Xxxx
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By:
Xxxx Xxxx
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Title:
President and Chief Executive Officer
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TDAM
USA Inc.
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/s/ Xxxxxxx Xxxxxxxx
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By:
Xxxxxxx Xxxxxxxx
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Title:
Managing Director
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