Exhibit 99.1h(16)
SUB-ADMINISTRATION AGREEMENT
SUB-ADMINISTRATION AGREEMENT ("Agreement") made as of March 22, 2007
between BISYS Fund Services Ohio, Inc. ("BISYS") and TD Asset Management USA
Inc. ("TDAM").
WHEREAS, TDAM provides certain administrative services for TD Asset
Management USA Funds Inc., an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act") (the
"Fund"), and to certain portfolios of the Fund (each a "Portfolio",
collectively, the "Portfolios") as listed on Schedule A, as such Schedule shall
be amended from time to time by the parties;
WHEREAS, TDAM serves as administrator for the Fund pursuant to an
Administration Agreement with the Fund;
WHEREAS, TDAM desires to retain BISYS to perform certain
sub-administration services with respect to the Fund, and BISYS is willing to
perform such services on the terms and conditions set forth in this Agreement;
and
WHEREAS, the parties desire that this Agreement supersede and replace that
certain Sub-Administration Agreement dated as of April 11, 2001, as amended,
between TD Waterhouse Investor Services, Inc., predecessor to TDAM, and Funds
Distributor, Inc., an affiliate of BISYS.
NOW THEREFORE, in consideration of the mutual agreements herein contained,
the parties agree as follows:
1. SERVICES PROVIDED BY BISYS. BISYS will assist TDAM by providing services to
the Portfolios of the Fund, as listed in Schedule B.
2. SERVICES PROVIDED BY TDAM. In furtherance of the responsibilities under this
Agreement TDAM will:
(a) cause the Fund's service providers to furnish any and all information and
assist BISYS in taking any other actions that may be reasonably necessary in
connection with BISYS providing those services listed in Schedule B;
(b) cause the Fund's blue sky administrator to monitor sales of the shares of
common stock of each Portfolio (the "Shares") to assure compliance with
applicable state securities and Blue Sky laws;
(c) cause the Fund's transfer agent to give necessary information for the
preparation of quarterly reports in a form satisfactory to BISYS regarding Rule
12b-1 fees, shareholder servicing 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 Directors (the "Board") of the
Fund;
(d) cause the Fund's transfer agent to provide BISYS with all necessary
historical information so that BISYS can calculate the maximum sales charges
payable by the Fund pursuant to the Conduct Rules of the National Association of
Securities Dealers, Inc. ("NASD") and the actual sales charges paid by the Fund,
if applicable; cause the Fund's transfer agent to provide BISYS with all of the
necessary information so that BISYS can calculate the maximum sales charges
payable by the Fund pursuant to the Conduct Rules of the NASD and the actual
sales charges paid by the Fund, if applicable; and cause the Fund's transfer
agent to provide such information in a form satisfactory to BISYS no less often
than monthly for the Fund, and on a daily basis for the Fund in the event that
BISYS determines that the remaining limit is approaching zero, if applicable;
and
(e) provide BISYS with copies of, or access to, any documents that BISYS may
reasonably request and notify BISYS as soon as possible of any matter materially
affecting BISYS's performance of its services under this Agreement.
3. COMPENSATION; REIMBURSEMENT OF EXPENSES. TDAM shall pay BISYS the following
fee for the services provided under this Agreement:
(a) an annual fee of $386,000 for Routine Administrative Services, as defined in
Schedule B, payable in equal monthly installments on the second business day of
each month, such annual fee to be increased as mutually agreed for the second
year of this Agreement and the third year of this Agreement; provided, however,
that the parties hereto shall renegotiate in good faith such annual fee should
the number of Portfolios increase or decrease materially; and
(b) for Extraordinary Administrative Services, as defined in Schedule B, a flat
or hourly fee to be determined after the scope of the project has been
accurately and completely defined. Only personnel with an Assistant Vice
President title or higher with BISYS would xxxx on an hourly basis.
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. 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, TDAM agrees to reimburse BISYS for BISYS's reasonable out-of-pocket
expenses as mutually agreed to by the parties from time to time.
4. EFFECTIVE DATE AND TERM. This Agreement shall become effective with respect
to the Fund as of the date first written above (or, if a particular Portfolio is
not in existence on that date, on the date BISYS becomes sub-administrator to
the Fund or Portfolio; Schedule A to this Agreement shall be deemed amended to
include such Fund or Portfolio from and after such date).
This Agreement shall become effective as of the date hereof and will continue
thereafter so long as such continuance is specifically approved at least
annually by the Fund's Board, provided that its continuance also is approved by
a majority of the Board members who are not "interested persons" (as defined in
the 0000 Xxx) 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 Portfolio or the Fund,
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without penalty, on not less than sixty days' notice, by the Fund's Board, by
vote of a majority (as defined in the 0000 Xxx) of the outstanding voting
securities of such Fund (or Portfolio), or by BISYS. This Agreement shall
terminate automatically in the event of its "assignment" (as defined in the 1940
Act). This Agreement may be terminated immediately by either party if it has
"Cause" to do so, which, for these purposes is defined as being applicable if
(i) the other party materially breaches this Agreement and the breach is not
remedied within 30 days after the party wishing to terminate gives the breaching
party written notice of the breach; (ii) a final judicial, regulatory or
administrative ruling or order is made in which the party to be terminated has
been found guilty of criminal or unethical behavior in the conduct of its
business; or (iii) the other party files a voluntary petition under any
bankruptcy or insolvency law, becomes the subject of an involuntary petition
under any bankruptcy or insolvency law that is not dismissed within 60 days, or
a trustee or receiver is appointed under any bankruptcy or insolvency law for
the other party or its property.
5. STANDARD OF CARE AND INDEMNIFICATION.
(a) TDAM will indemnify and hold harmless BISYS, its officers, employees and
agents and any persons who control BISYS (together "BISYS and its employees")
and hold each of them harmless from any losses, claims, damages or liabilities,
or actions in respect thereof, to which BISYS and its employees may become
subject, including amounts paid in settlement with the prior written consent of
TDAM, insofar as such losses, claims, damages or liabilities, or actions in
respect thereof, arise out of or result from the failure of TDAM to comply with
the terms of this Agreement;
(b) BISYS will indemnify and hold harmless TDAM, its officers, employees and
agents and any persons who control TDAM (together "TDAM and its employees") and
hold each of them harmless from any losses, claims, damages or liabilities, or
actions in respect thereof, to which TDAM and its employees may become subject,
including amounts paid in settlement with the prior written consent of BISYS,
insofar as such losses, claims, damages or liabilities, or actions in respect
thereof, arise out of or result from the failure of BISYS to comply with the
terms of this Agreement;
TDAM will reimburse BISYS and its employees for reasonable legal or other
expenses reasonably incurred by BISYS and its employees in connection with
investigating or defending against any such loss, claim, damage, liability or
action. TDAM shall not be liable to BISYS for any action taken or omitted by
BISYS in bad faith, with willful misfeasance or gross negligence, or with
reckless disregard by BISYS 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 BISYS that serve as
officers or directors of the Fund and to each of the directors and officers of
BISYS and any person controlling BISYS 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").
BISYS will reimburse TDAM for reasonable legal or other expenses reasonably
incurred by TDAM in connection with investigating or defending against any such
loss, claim, damage, liability or action. BISYS shall not be liable to TDAM for
any action taken or omitted by TDAM in bad faith, with willful misfeasance or
gross negligence, or with reckless disregard by TDAM of its
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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 TDAM and any person controlling TDAM 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 the
responsibility for contesting any losses, claims, damages or liabilities and may
designate counsel satisfactory to the indemnified party 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
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settlement or compromise, without the consent of the indemnified party. In the
event that any expense paid by the indemnitor pursuant to this Section 5(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 pursuant to this Section 5 shall survive the
termination of this Agreement.
6. RECORD RETENTION AND CONFIDENTIALITY. BISYS shall keep and maintain on behalf
of the Fund all books and records which the Fund and BISYS 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 31 a-1 and 31 a-2 under the 1940 Act. BISYS further
agrees that all such books and records shall be the property of the Fund and to
make such books and records available for inspection by the Fund, by TDAM, 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 Fund
and its shareholders; except when requested to divulge such information by
duly-constituted authorities or court process.
7. RIGHTS OF OWNERSHIP. All computer programs and procedures developed to
perform the services to be provided by BISYS under this Agreement are the
property of BISYS.
8. RETURN OF RECORDS. BISYS may at its option at any time, and shall promptly
upon the demand of TDAM and/or the Fund, turn over to TDAM and/or the Fund and
cease to retain BISYS's files, records and documents created and maintained by
BISYS pursuant to this Agreement so long as BISYS shall be able to retain
photocopies of such documents to the extent needed by BISYS in the performance
of its services or for its legal protection. If not so turned over to TDAM
and/or the Fund, such documents and records will be retained by BISYS for six
years from the end of the fiscal year of the Fund for which they were created.
At the end of such six-year period, such records and documents will be turned
over to TDAM and/or the Fund unless the Fund authorizes in writing the
destruction of such records and documents.
9. REPRESENTATIONS OF TDAM. TDAM represents and warrants to BISYS that: (a) this
Agreement has been disclosed to the Board of the Fund, and TDAM has provided all
such information to the Board as may be appropriate (or as has been requested by
the Board) in connection with the Board's review or approval of the arrangements
contemplated hereunder, including amounts expended or to be expended by TDAM
hereunder; and (b) this Agreement has been duly authorized by TDAM and, when
executed and delivered by TDAM, will constitute a legal, valid and binding
obligation of TDAM, enforceable against TDAM in accordance with its
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terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies of creditors and
secured parties.
10. REPRESENTATIONS OF BISYS. BISYS represents and warrants that this Agreement
has been duly authorized by BISYS and, when executed and delivered by BISYS,
will constitute a legal, valid and binding obligation of BISYS, enforceable
against BISYS 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. NOTICES. All notices or other communications hereunder to either party shall
be in writing and shall be deemed sufficient if mailed to TDAM at the following
address: 00 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X.
Xxxxxxxx; and to BISYS at the following address: 000 Xxxxxx Xxxxxx, Xxxxxx, XX
00000, Attention: President, with a copy to The BISYS Group, Inc., 000
Xxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000, Attention: 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).
12. HEADINGS. Paragraph headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
13. 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.
14. GOVERNING LAW. This Agreement shall be governed by and provisions shall be
construed in accordance with the laws of New York.
15. COUNTERPARTS. 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.
16. ENTIRE AGREEMENT. This Agreement constitutes the complete agreement of the
parties as to the subject matter covered by this Agreement, and supersedes all
prior negotiations, understandings and agreements bearing upon the subject
matter covered herein.
* * * * *
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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 Asset Management USA Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
BISYS Fund Services Ohio, Inc.
By: /s/ Xxxx Xxxxxxx
-------------------------
Name: Xxxx Xxxxxxx
Title: President
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