Exhibit 99.1h(23)
AMENDMENT NO.3 TO
ACCOUNTING SERVICES AGREEMENT
THIS AMENDMENT NO. 3 TO ACCOUNTING SERVICES AGREEMENT (this "Amendment"),
effective as of the 31st day of August, 2007. by and between TD Asset Management
USA Inc. ("Customer"), as successor to TD Waterhouse Investor Services, Inc.
and SEI Investments Global Funds Services (formerly SEI Investments Mutual Fund
Services), a Delaware business trust ("SEI").
WHEREAS, Customer and SEI entered into on Accounting Services Agreement, dated
as of the 1st day of September, 2000, as amended by Amendment No. 1. dated as of
May 31, 2005 and Amendment No. 2, dated as of August 31, 2005 (the "Agreement").
WHEREAS, pursuant to the Agreement, among other things, SEI has agreed to
provide certain fund accounting and related portfolio accounting services with
respect to the Portfolios;
WHEREAS, Customer and SEI desire to further amend the Agreement as provided
herein.
NOW THEREFORE, in consideration of the premises, covenants, representations and
warranties contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Article 3 (Allocation of Charges and Expenses). Article 3 (Allocation of
Charges and Expenses) is hereby deleted and replaced in its entirely as
follows:
ARTICLE 3. Allocation of Charges and Expenses. SEI shall furnish at
its own expense the executive, supervisory and clerical personnel
necessary to perform its obligations under this Agreement. The
Customer shall reimburse SEI for its reasonable out-of-pocket
expenses incurred on behalf of the Customer, including (but not
limited to) pricing services fees, corporate action services,
municipal rate resets, fair valuation services, financial statement
preparation, record retention, Lipper redistribution fees, SAS 70
allocation, regulatory compliance support services, wire and postage
charges, custom interfaces, ratings updates and all other reasonable
administrative expenses incurred by SEI in the performance of its
duties hereunder in accordance with agreed upon procedures. SEI
shall provide Customer documentation evidencing out-of-pocket
expenses and their allocation as reasonably requested by Customer.
2. Article 5 (Limitation of Liability of SEI). Article 5 is hereby amended to
add the following to the end of such Article:
SEI may, from time to time, provide to the Customer services and
products ("Special Third Party Services") from external third party
sources that are telecommunication carriers, Pricing Sources, data
feed providers or other similar service providers ("Special Third
Party Vendors"). For purposes of the foregoing, "Pricing Sources"
means any prior administrators, brokers and custodians, investment
advisors (including, without limitation, the Investment Manager),
underlying funds in which a Fund invests, if applicable, or any
third-party pricing services selected by the Administrator, the
Investment Manager or a Fund who provide price and value information
hereunder. The
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Customer acknowledges and agrees that the Special Third Party
Services are confidential and proprietary trade secrets of the
Special Third Party Vendors. Accordingly, the Customer shall honor
reasonable requests by SEI and the Special Third Party Vendors to
protect their proprietary rights in their data, information and
property including reasonable requests that the Customer place
copyright notices or other proprietary legends on printed matter,
print outs, tapes, disks, film or any other medium of dissemination.
The Customer further acknowledges and agrees that all Special Third
Party Services are provided on an "AS IS WITH ALL FAULTS" basis
solely for the Customer's internal use in connection with the
receipt of the Services. The Customer may use Special Third Party
Services as normally required on view-only screens and hard copy
statements, reports and other documents necessary to support the
Portfolios, however the Customer shall not distribute any Special
Third Party Services to other third parties; provided that Customer
may share such reports and other documents with its agents and
advisors (including auditors, sub-administrators, counsel and boards
of directors of the Portfolios) so long as such parties' use of such
information is limited solely to use in connection with Customer's
receipt of the services hereunder. THE SPECIAL THIRD PARTY VENDORS
AND SEI MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO
MERCHANTABILITY, FITNESS FOR A PARTICULAR USE. OR ANY OTHER MATTER
WITH RESPECT T0 ANY OF THE SPECIAL THIRD PARTY SERVICES. NEITHER SEI
NOR THE SPECIAL THIRD PARTY VENDORS SHALL BE LIABLE FOR ANY DAMAGES
SUFFERED BY THE CUSTOMER IN THE USE OF ANY OF THE SPECIAL THIRD
PARTY SERVICES, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR ANY
INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES.
3. Article 7 (Term and Termination). The first two paragraphs of Article 7
(Term and Termination), are hereby deleted in their entirety and replaced
as follows:
ARTICLE 7. Term and Termination. This Agreement shall become
effective upon the date first written above. The initial term of
this Agreement will commence on September 1, 2007 end will continue
in effect until the 1st day of September 2010. This Agreement shall
be binding on all successors and permitted assignees of the parties.
Upon conclusion of the initial term, this Agreement will
automatically remain in full force and effect for successive
one-year periods, unless the Agreement is terminated, as provided
below. Customer or SEI may elect to terminate this Agreement on the
last day of the initial term or any renewal term by notifying the
other in writing not less than ninety (90) days prior to the end of
the then current term, Customer may elect to terminate this
Agreement if all key management personnel (i.e. managing directors
and accounting directors of mutual fund services operations) of SEI
terminate their employment in a concerted plan and SEI fails to
replace such personnel with suitable replacements of a comparable
experience in a reasonable period of time, SEI and its personnel
fail on a regular basis to be in
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material compliance with regulatory guidelines and regulations and
such material non-compliance has directly resulted in material
adverse harm to the Customer, or in the event SEI has materially
failed to perform its duties under this Agreement, and such material
failure has not been cured within 60 days after written notice is
received by Customer specifying the nature of the material failure
and the reasonable steps to be taken by SEI to remedy the failure.
4. Article 9. The address for notices for Customer set forth in Section 9 of
the Agreement is hereby amended as follows:
TD Asset Management USA Inc.
▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
5. Article 13. Article 13 of the Agreement is hereby deleted in its entirety
and replaced as follows:
ARTICLE 13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Pennsylvania without giving effect to any conflict of laws or choice
of laws rules or principles thereof.
6. Article 19 Anew Article 19 is hereby added to the Agreement as set forth
below:
ARTICLE 19. CONFIDENTIALITY. SEI shall keep confidential and shall not
disclose to any person any books, records, information and data pertaining
to the business of the Portfolios, or their prior, present or potential
shareholders that is within the possession or control of SEI in connection
with the performance of SEI's duties under this Agreement, except as
specifically authorized by the Customer or the Portfolios or as may be
required by law. SEI shall not use such books, records, information and
data for any purpose other than in performance of its duties and
obligations hereunder; provided, however that SEI retains the right to
disclose such information in response to the request of any governmental
authority, regulators, internal or external auditors, accountants, or
internal or external counsel. SEI will use reasonable efforts to provide
written notice to Customer at least five business days prior to any
disclosures pursuant to this Article 19.
7. Schedule A (Portfolios). Schedule A (Portfolios) is hereby deleted in its
entirety and replaced as set forth in Attachment 1 hereto.
8. Schedule B (Accounting Services; List of Duties/Responsibilities).
Schedule B (Accounting Services; List of Duties/Responsibilities) is
hereby amended to add the following:
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8.1 A new subsection (K) is hereby added to Schedule B (Accounting Services;
List of Duties/Responsibilities) under the heading, "Daily Accounting
Services" as follows:
K) Provide Chief Financial Officer and Treasurer to TD Asset Management
USA Funds Inc.
8.2 A new subsection (K) is hereby added to Schedule B (Accounting Services;
List of Duties/Responsibilities) under the heading. "Annual (and
Semi-Annual) Accounting Services" as follows:
C) Provide Chief Financial Officer Certifications required by the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or any rules or regulations promulgated
by the Securities Exchange Commission thereunder and certain
sub-certifications reasonably requested by Customer in connection
with such certifications.
8.3 A new section is hereby added to Schedule B (Accounting Services; List of
Duties/Responsibilities) under the heading, "Treasury Services" as
follows:
TREASURY SERVICES
A) Review and monitor ▇▇▇▇-to-market comparisons for money market funds
that are generated by the fund accountant.
B) Coordinate/monitor/proofread with assistance from Customer and fund
accountant and any other relevant fund service providers (including
▇▇▇▇▇ vendors), ▇▇▇▇▇ (Electronic Data Gathering Analysis and
Retrieval System), online filings related to Form N-SARs, Form
24f-2. Form N-Q, and annual and semi-annual shareholder reports on
Form N_CSR.
9. Schedule C (Fund Accounting Fees). Schedule C (Fund Accounting Fees) is
hereby deleted in its entirety and replaced as set forth in Attachment 2
hereto,
10. Ratification of Agreement. Except as expressly amended and provided
herein, all of the terms, conditions and provisions of the Agreement are
hereby ratified and confirmed to be of full force and elect, and shall
continue in full force and effect.
11 Counterparts. This Amendment shall become binding when any one or more
counterparts hereof individually or taken together, shall bear the
original or facsimile signature of each of the parties hereto. This
Amendment may be executed in any number of counterparts, each of which
shall be an original against any party whose signature appears thereon,
but all of which together shall constitute but one and the same
instrument.
12. Governing Law. This Amendment shall in all respects be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania
without giving effect to conflict of law provisions.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment by
their duly authorized representatives as of the day and year first above
written.
TD ASSET MANAGEMENT USA INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
SEI INVESTMENTS GLOBAL FUNDS SERVICES
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
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ATTACHMENT 1
SCHEDULE A
PORTFOLIOS
TD Asset Management USA Funds Inc.
TDAM Money Market Portfolio
TDAM U.S. Government Money Market Portfolio
TDAM Municipal Money Market Portfolio
TDAM California Municipal Money Market Portfolio
TDAM New York Municipal Money Market Portfolio
TDAM Short Term Investment Fund
TDAM Short Term Bond Fund
TDAM Institutional Money Market Fund
TDAM Institutional U.S. Government Fund
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ATTACHMENT 2
SCHEDULE C
FUND ACCOUNTING FEES
ANNUAL ASSET BASED FEE:
Basis Points Aggregate Assets
125 basis points (0.0125%) on the first $5 billion of aggregate assets
140 basis points (0.0 100%) on the next $5 billion of aggregate assets
0,50 basis points (0.0050%) on the next $10 billion of aggregate assets
0.25 basis points (0.0025%) on aggregate assets exceeding $20 billion
ANNUAL MINIMUM FEES:
Annual Fund Complex Minimum $985,000
Annual fee for each additional domestic portfolio $50,000
Annual fee for each additional international portfolio $65,000
Annual fee for each additional class $15,000
The term "Fund Complex" as used herein refers to each of the Portfolios set
forth on Schedule A of this Agreement.
The term "international portfolio" as used herein refers to any portfolio
consisting of greater than 30% of its assets traded and held in a custodial
account in non-United States securities markets.
The addition of a new portfolio or class will increase the Annual Fund Complex
Minimum by the amount stated under ANNUAL MINIMUM FEES. It is Customer's and
SEI's understanding that Customer has no current plans to substantially increase
the number of portfolios listed under SCHEDULE A. In the event Customer decides
to add more than 5 new portfolios to SCHEDULE A during the term of this
Agreement, Customer and SEI will discuss the implementation of a nominal per
portfolio minimum to cover SEI's expenses associated with opening any new
portfolio after the fifth new portfolio added to SCHEDULE A.
OUT OF POCKET FEES:
Customer will reimburse certain out-of-pocket costs incurred by SEI as set forth
in Article 3 of the Agreement.
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