Exhibit 99.1e(1)
DISTRIBUTION AGREEMENT
This distribution agreement (the "Agreement") is made as of this 27th day
of July, 2007 between TD Asset Management USA Funds Inc. (the "Company"), a
Maryland corporation, and SEI Investments Distribution Co. (the "Distributor"),
a Pennsylvania corporation.
A. The Company is registered as an investment company with the Securities
and Exchange Commission (the "SEC") under the Investment Company Act of 1940, as
amended (the "17940 Act"), and its shares are registered with the SEC under the
Securities Act of 1933, as amended (the "1933 Act");
B. The Company consists of one or more separate portfolios (each, a "Fund"
and together, the "Funds") as set forth on Schedule C, as such schedule may be
amended from time to time; and
C. The Distributor is registered as a broker-dealer with the SEC under the
Securities Exchange Act of 1934, as amended.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, intending to be legally bound, the Company and Distributor hereby
agree as follows:
ARTICLE 1. Sale of Shares; Services. The Company grants to the Distributor the
right to sell shares of common stock (the "Shares") of each Fund at the net
asset value per Share, plus any applicable sales charges in accordance with the
current prospectus, as agent and on behalf of the Company, during the term of
this Agreement and subject to the registration requirements of the 1933 Act, the
rules and regulations of the SEC and the laws governing the sale of securities
in the various states ("Blue Sky Laws"). Without limiting the foregoing, the
Distributor shall perform or supervise the performance by others of the
distribution and marketing services set forth in Schedule A.
Whenever in their judgment such action is warranted by unusual market, economic
or political conditions or by abnormal circumstances of any kind, the Company's
officers may upon reasonable notice instruct the Distributor to decline to make
any sales of the Shares until such time as those officers deem it advisable to
male such sales. The Company shall be obligated to instruct its transfer agent
as to any restrictions on the sale of Shares contemplated by this Article 1 and
the Distributor shall not be liable for any failure by the transfer agent to
follow such instructions.
ARTICLE 2. Solicitation of Sales. In consideration of these rights granted to
the Distributor, the Distributor agrees to use all reasonable efforts in
connection with the distribution of Shares of the Company; provided, however,
that the Distributor shall not be prevented from entering into like arrangements
with other issuers so long as the Distributor's services under this Agreement
are not impaired by the Distributor entering into such like arrangements with
other issuers. The provisions of this paragraph do not obligate the Distributor
to register as a broker or dealer under the Blue Sky Laws of any jurisdiction
when it determines it would be uneconomical for it to do so or to maintain its
registration in any jurisdiction in which it is now registered or obligate the
Distributor to sell any particular number of Shares.
ARTICLE 3. Representations and Warranties. The Distributor represents and
warrants that it is a member of the National Association of Securities Dealers,
Inc. ("NASD") and agrees to abide by all of the rules and regulations of the
NASD including, without limitation, its Conduct Rules. The Distributor agrees
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to notify the Company promptly in the event of its expulsion or suspension by
the NASD. Expulsion of the Distributor by the NASD will automatically terminate
this agreement immediately without notice. Suspension of the Distributor by the
NASD will terminate this Agreement effective immediately upon written notice of
termination to the Distributor from the Company. The Distributor shall be
responsible for reviewing and, as determined by the Distributor, making such
filings with the NASD, as required, of advertisements and sales literature
relating to each Fund that the Company or the Fund's investment adviser provide
to the Distributor. The Distributor shall be responsible for reviewing the
registration statement of each Fund, as applicable, for disclosure of the
details of any arrangement between the Distributor and an NASD member by which
special cash compensation arrangements are made available to the NASD member
distributing the Fund's securities, which arrangements are not made available on
the same terms to all NASD members who distribute the Fund's securities.
ARTICLE 4. Authorized Representations. The Distributor is not authorized by the
Company to give any information or to make any representations other than those
contained in the current registration statements and prospectuses of the Company
filed with the SEC or contained in Shareholder reports or other material that
may be prepared by or on behalf of the Company for the Distributor's use. The
Distributor may prepare and distribute sales literature and other material as it
may deem appropriate, provided that such literature and materials have been
prepared in accordance with applicable rules and regulations.
ARTICLE 5. Registration of Shares. The Company agrees that it will take all
action necessary to register Shares under the federal and state securities laws
so that there will be available for sale the number of Shares the Distributor
may reasonably be expected to sell and to pay all fees associated with said
registration. The Company shall make available to the Distributor such number of
copies of its currently effective prospectus and statement of additional
information as the Distributor may reasonably request. The Company shall furnish
to the Distributor copies of all information, financial statements and other
papers which the Distributor may reasonably request for use in connection with
the distribution of Shares of the Company.
No Shares shall be offered by either the Distributor or the Company under any of
the provisions of this Agreement and no orders for the purchase or sale of
Shares hereunder shall be accepted by the Company if and so long as the
effectiveness of the Company's registration statement then in effect or any
necessary amendments thereto shall be suspended under any of the provisions of
the 1933 Act or if and so long as a current prospectus as required by Section 10
of said 1933 Act is not on file with the SEC; provided, however, that: (a) the
Distributor will not be obligated to cease offering Shares until it has received
from the Company written notice of such events; (b) nothing contained in this
Article 5 shall in any way restrict or have an application to or bearing upon
the Company's obligation to repurchase Shares from any Shareholder in accordance
with the provisions of the Company's prospectus, Articles of Incorporation or
By-Laws; and (c) the Company shall be obligated to instruct its transfer agent
as to any restriction on the sale of Shares contemplated by this Article 5 and
the Distributor shall not be liable for any failure by the transfer agent to
follow such instructions.
ARTICLE 6. Compensation. As compensation for providing the services under this
Agreement:
(a) Distributor shall receive from the Company:
(1) all distribution and service fees, as applicable, at the rate and under the
terms and conditions set forth in each Fund's distribution plan established
pursuant to Rule 12b-1 under the 1940 Act (each, a "Distribution Plan") and/or
shareholder services plan applicable to the appropriate class of shares of each
Fund, but only if
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and to the extent provided in each such plan, as such plans may be amended from
time to time, and subject to any further limitations on such fees as the Board
of Directors of the Company may impose;
(2) all front-end sales charges, if any, on purchases of Shares of each Fund
sold subject to such charges as described in the Company's registration
statement and current prospectuses, as amended from time to time. The
Distributor, or brokers, dealers and other financial institutions and
intermediaries that have entered into sub-distribution agreements with the
Distributor, may collect the gross proceeds derived from the sale of such
Shares, remit the net asset value thereof to the Company upon receipt of the
proceeds and retain the applicable sales charge; and
(3) all contingent deferred sales charges ("CDSC"), if any, applied on
redemptions of Shares subject to such charges on the terms and subject to such
waivers as are described in the Company's registration statement and current
prospectuses, as amended from time to time, or as otherwise required pursuant to
applicable law.
(b) The Distributor may re-allow any or all of the distribution or service
fees, front-end sales charges and contingent deferred sales charges which it is
paid by the Company, if any, to such brokers, dealers and other financial
institutions and intermediaries as the Distributor may from time to time
determine.
(c) In addition to the foregoing, the Distributor shall receive the annual
fee set forth in Schedule B hereto for providing the Company the services set
forth herein. To the extent the Funds have implemented Distribution Plans that
permit and authorize such compensation to be paid to the Distributor and the
Board of Directors has given any necessary authorizations, the Funds shall be
responsible for such compensation, or portion thereof, as have been authorized
under the applicable Distribution Plans and which are available for such payment
after the Distributor has reallowed applicable distribution and/or service fees
to brokers, dealers and other financial intermediaries as contemplated in
Article 6(b) hereof. The parties acknowledge that the Distributor expects to pay
out substantially all amounts it receives under the Funds' Distribution Plans
pursuant to Article 6(b] and, accordingly, the parties contemplate that the
Company's investment adviser shall pay the Distributor this annual fee out of
its own resources to the extent amounts are not available out of the proceeds
received by the Distributor pursuant to the Funds' Distribution Plans in
accordance with a separate agreement entered into between the Company's
investment adviser and the Distributor.
(d) Unless otherwise agreed to by the parties in writing, the Distributor
shall not be responsible for fees and expenses in connection with (a) filing of
any registration statement, printing and the distribution of any prospectus(es)
and statement(s) of additional information under the 1933 Act and/or the 1940
Act and amendments prepared for use in connection with the offering of Shares
for sale to the public, preparing, setting in type, printing and mailing the
prospectus(es), statement(s) of additional information and any supplements
thereto sent to existing shareholders, (b) preparing, setting in type, printing
and mailing any report (including annual and semi-annual reports) or other
communication to shareholders of the Fund, and (c) the Blue Sky registration and
qualification of Shares for sale in the various states in which the Fund shall
determine it advisable to qualify such Shares for sale.
ARTICLE 7. Indemnification of Distributor. The Company, on behalf of each Fund,
severally, and not jointly, agrees to indemnify and hold harmless the
Distributor and each of its directors and officers and each person, if any, who
controls the Distributor within the meaning of Section 15 of the 1933 Act
against any loss, liability, claim, damages or expense (including the reasonable
cost of investigating or defending any alleged loss, liability, claim, damages,
or expense and reasonable counsel fees and disbursements incurred in connection
therewith), arising by reason of any person acquiring any Shares, based upon the
ground that the
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registration statement, prospectus, Shareholder reports, sales literature or
other information filed or made public by the Company (as from time to time
amended) included an untrue statement of a material fact or omitted to state a
material fact required to be stated or necessary in order to make the statements
made not misleading. However, the Company does not agree to indemnify the
Distributor or hold it harmless to the extent that the statements or omission
was made in reliance upon, and in conformity with, information furnished to the
Company by or on behalf of the Distributor.
In no case (i) is the indemnity of the Company to be deemed to protect the
Distributor against any liability to the Company or its Shareholders to which
the Distributor or such person otherwise would be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties, by
reason of its reckless disregard of its obligations and duties under this
Agreement, by reason of its material breach of this Agreement or by reason of
its failure to comply with laws, rules and regulations applicable to it in
connection with its activities hereunder or (ii) is the Company to be liable to
the Distributor under the indemnity agreement contained in this Article 7 with
respect to any claim made against the Distributor or any person indemnified
unless the Distributor or other person shall have notified the Company in
writing of the claim within a reasonable time after the summons or other first
written notification giving information of the nature of the claim shall have
been served upon the Distributor or such other person (or after the Distributor
or the person shall have received notice of service on any designated agent).
However, failure to notify the Company of any claim shall not relieve the
Company from any liability which it may have to the Distributor or any person
against whom such action is brought otherwise than on account of its indemnity
agreement contained in this paragraph.
The Company shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the Company elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by the Company and satisfactory to the indemnified defendants in the suit
whose approval shall not be unreasonably withheld. In the event that the Company
elects to assume the defense of any suit and retain counsel, the indemnified
defendants shall bear the fees and expenses of any additional counsel retained
by them. If the Company does not elect to assume the defense of a suit, it will
reimburse the indemnified defendants for the reasonable fees and expenses of any
counsel retained by the indemnified defendants.
The Company agrees to notify the Distributor promptly of the commencement
of any litigation or proceedings against it or any of its officers or Directors
in connection with the issuance or sale of any of its Shares.
ARTICLE 8. Indemnification of Company. The Distributor covenants and agrees that
it will indemnify and hold harmless the Company and each of its Directors and
officers and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act, against any loss, liability, damages, claim or
expense (including the reasonable cost of investigating or defending any alleged
loss, liability, damages, claim or expense and reasonable counsel fees incurred
in connection therewith) arising by reason of any person acquiring any Shares,
and (i) alleging a wrongful act of the Distributor or any of its employees, (ii)
alleging that the registration statement, prospectus, Shareholder reports or
other information filed or made public by the Company (as from time to time
amended) included an untrue statement of a material fact or omitted to state a
material fact required to be stated or necessary in order to make the statements
not misleading, insofar as the statement or omission was made in reliance upon
and in conformity with information furnished to the Company by or on behalf of
the Distributor or (iii) alleging that sales literature or other material
prepared and distributed by the Distributor pursuant to Article 4 included an
untrue statement of a material fact or omitted to state a material fact required
to be stated or necessary in order to make the statements not misleading;
provided, that, the Distributor does not agree to indemnify the
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Company or hold it harmless to the extent that the statements or omission in
such sales literature or other material was made in reliance upon, and in
conformity with, information furnished to the Distributor by or on behalf of the
Company.
In no case (i) is the indemnity of the Distributor in favor of the Company
or any other person indemnified to be deemed to protect the Company or any other
person against any liability to which the Company or such other person would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties by reason of its reckless disregard
of its obligations and duties under this Agreement or by reason of its material
breach of this Agreement or (ii) is the Distributor to be liable under its
indemnity agreement contained in this paragraph with respect to any claim made
against the Company or any person indemnified unless the Company or person, as
the case may be, shall have notified the Distributor in writing of the claim
within a reasonable time after the summons or other first written notification
giving information of the nature of the claim shall have been served upon the
Company or upon any person (or after the Company or such person shall have
received notice of service on any designated agent). However, failure to notify
the Distributor of any claim shall not relieve the Distributor from any
liability which it may have to the Company or any person against whom the action
is brought otherwise than on account of its indemnity agreement contained in
this paragraph.
The Distributor shall be entitled to participate, at its own expense, in
the defense or, if it so elects, to assume the defense of any suit brought to
enforce the claim, but if the Distributor elects to assume the defense, the
defense shall be conducted by counsel chosen by the Distributor and satisfactory
to the indemnified defendants whose approval shall not be unreasonably withheld.
In the event that the Distributor elects to assume the defense of any suit and
retain counsel, the defendants in the suit shall bear the fees and expenses of
any additional counsel retained by them. If the Distributor does not elect to
assume the defense of any suit, it will reimburse the indemnified defendants in
the suit for the reasonable fees and expenses of any counsel retained by them.
The Distributor agrees to notify the Company promptly of the commencement
of any litigation or proceedings against it or any of its officers in connection
with the issue and sale of any of the Company's Shares.
ARTICLE 9. Consequential Damages. In no event and under no circumstances shall
either party to this Agreement be liable to anyone, including, without
limitation, the other party, for consequential damages for any act or failure to
act under any provision of this Agreement.
ARTICLE 10. Effective Date. This Agreement shall be effective with respect to
each Fund upon its execution (or, if a particular Fund is not in existence on
such date, on the earlier of the date an amendment to Schedule C of this
Agreement relating to that Fund is executed or the Distributor begins providing
services under this Agreement with respect to such Fund), and, unless terminated
as provided, shall continue in force for a two-year term and thereafter from
year to year, provided that such annual continuance is approved by (i) either
the vote of a majority of the Directors of the Company, or the vote of a
majority of the outstanding voting securities of the applicable Fund, and (ii)
the vote of a majority of those Directors of the Company who are not parties to
this Agreement or the Company's distribution plan or interested persons of any
such party ("Qualified Directors"), cast in person at a meeting called for the
purpose of voting on the approval. This Agreement shall automatically terminate
in the event of its assignment. As used in this paragraph the terms "vote of a
majority of the outstanding voting securities," "assignment" and "interested
person" shall have the respective meanings specified in the 1940 Act. In
addition, this Agreement may at any time be terminated as to any or all Funds
without penalty by the Distributor by a vote of a majority of Qualified
Directors or by vote of a majority of the outstanding voting
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securities of each Fund upon not less than sixty days prior written notice to
the other party.
ARTICLE 11. Notices. All notices provided for or permitted under this Agreement
shall be deemed effective upon receipt, and shall be in writing and (a)
delivered personally, (b) sent by commercial overnight courier with written
verification of receipt, or (c) sent by certified or registered U.S. mail,
postage prepaid and return receipt requested, to the party to be notified, at
the address for such party set forth below. Notices to the Distributor shall be
sent to the attention of: General Counsel, SEI Investments Distribution Co., 0
Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000. Notices to the Fund shall be
sent to TD Asset Management USA Inc.,31 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx X. Xxxxxxxx.
ARTICLE 12. Limitation of Liability. A copy of the Articles of Incorporation of
the Company is on file with the Secretary of State of the State of Maryland, and
notice is hereby given that this Agreement is executed on behalf of the
Directors of the Company as Directors and not individually and that the
obligations of this instrument are not binding upon any of the Directors,
officers or shareholders of the Company individually but binding only upon the
assets and property of the Company.
ARTICLE 13. Dispute Resolution. Whenever either party desires to institute legal
proceedings against the other concerning this Agreement, it shall provide
written notice to that effect to such other party. The party providing such
notice shall refrain from instituting said legal proceedings for a period of
thirty days following the date of provision of such notice. In the case of a
temporary restraining order, preliminary injunction, or similar time-sensitive
legal action, the party providing such notice shall refrain from instituting
said legal proceeding for a period of five days following the date of provision
of such notice. The parties shall attempt in good faith to amicably resolve
their dispute by negotiation among their executive officers.
ARTICLE 14. Entire Agreement; Amendments. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior agreement, draft
or agreement or proposal with respect to the subject matter hereof. This
Agreement or any part hereof may be changed or waived only by an instrument in
writing signed by the party against which enforcement of such change or waiver
is sought.
ARTICLE 15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to any
conflict of laws or choice of laws rules or principles thereof. To the extent
that the applicable laws of the State of New York, or any of the provisions of
this Agreement, conflict with the applicable provisions of the 1940 Act, the
latter shall control.
ARTICLE 16. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall constitute one and the same instrument. Each
such counterpart shall be deemed an original, and it shall not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart. This Agreement shall be deemed executed by both parties when any
one or more counterparts hereof or thereof, individually or taken together,
bears the original or facsimile signatures of each of the parties.
ARTICLE 17. Force Majeure. No breach of any obligation of a party to this
Agreement (other than obligations to pay amounts owed) will constitute an event
of default or breach to the extent it arises out of a cause, existing or future,
that is beyond the control and without negligence of the party otherwise
chargeable with breach or default, including without limitation: work action or
strike; lockout or other labor dispute; flood; war; riot; theft; act of
terrorism, earthquake or natural disaster. Either party desiring to rely upon
any of the foregoing as an excuse for default or breach will, when the cause
arises, give to
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the other party prompt notice of the facts which constitute such cause; and,
when the cause ceases to exist, give prompt notice thereof to the other party.
ARTICLE 18. Severability. Any provision of this Agreement that is determined to
be invalid or unenforceable in any jurisdiction shall be ineffective to the
extent of such invalidity or unenforceability in such jurisdiction, without
rendering invalid or unenforceable the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction. If a court of competent jurisdiction declares any provision of
this Agreement to be invalid or unenforceable, the parties agree that the court
making such determination shall have the power to reduce the scope, duration, or
area of the provision, to delete specific words or phrases, or to replace the
provision with a provision that is valid and enforceable and that comes closest
to expressing the original intention of the parties, and this Agreement shall be
enforceable as so modified.
ARTICLE 19. Confidential Information.
(a) The Distributor and the Company (in such capacity, the "Receiving
Party") acknowledge and agree to maintain the confidentiality of Confidential
Information (as hereinafter defined) provided by the Distributor and the Company
(in such capacity, the "Disclosing Party") in connection with this Agreement.
The Receiving Party shall not disclose or disseminate the Disclosing Party's
Confidential Information to any person other than (a) those employees, agents,
contractors, subcontractors and licensees of the Receiving Party, or (b) with
respect to the Distributor as a Receiving Party, to those employees, agents,
contractors, subcontractors and licensees of any agent or affiliate, who have a
need to know it in order to assist the Receiving Party in performing its
obligations, or to permit the Receiving Party to exercise its rights under this
Agreement. In addition, the Receiving Party (a) shall take all reasonable steps
to prevent unauthorized access to the Disclosing Party's Confidential
Information, and (b) shall not use the Disclosing Party's Confidential
Information, or authorize other persons to use the Disclosing Party's
Confidential Information, for any purposes other than in connection with
performing its obligations or exercising its rights hereunder. As used herein,
"reasonable steps" means steps that a party takes to protect its own, similarly
confidential or proprietary information of a similar nature, which steps shall
in no event be less than a reasonable standard of care.
(b) The term "Confidential Information," as used herein, shall mean all
business strategies, plans and procedures, proprietary information,
methodologies, data and trade secrets, and other confidential information and
materials (including, without limitation, any non-public personal information as
defined in Regulation S-P) of the Disclosing Party, its affiliates, their
respective clients or suppliers, or other persons with whom they do business,
that may be obtained by the Receiving Party from any source or that may be
developed as a result of this Agreement.
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(c) The provisions of this Article 19 respecting Confidential Information
shall not apply to the extent, but only to the extent, that such Confidential
Information: (a) is already known to the Receiving Party free of any restriction
at the time it is obtained from the Disclosing Party, (b) is subsequently
learned from an independent third party free of any restriction and without
breach of this Agreement; (c) is or becomes publicly available through no
wrongful act of the Receiving Party or any third party; (d) is independently
developed by or for the Receiving Party without reference to or use of any
Confidential Information of the Disclosing Party; or (e) is required to be
disclosed pursuant to an applicable law, rule, regulation, government
requirement or court order, or the rules of any stock exchange (provided,
however, that the Receiving Party shall advise the Disclosing Party of such
required disclosure promptly upon learning thereof in order to afford the
Disclosing Party a reasonable opportunity to contest, limit and/or assist the
Receiving Party in crafting such disclosure).
(d) The Receiving Party shall advise its employees, agents, contractors,
subcontractors and licensees, and shall require its agents and affiliates to
advise their employees, agents, contractors, subcontractors and licensees, of
the Receiving Party's obligations of confidentiality and non-use under this
Article 19, and shall be responsible for ensuring compliance by its and its
affiliates' employees, agents, contractors, subcontractors and licensees with
such obligations. In addition, the Receiving Party shall require all persons
that are provided access to the Disclosing Party's Confidential Information,
other than the Receiving Party's accountants and legal counsel, to execute
confidentiality or non-disclosure agreements containing provisions substantially
similar to those set forth in this Article 19. The Receiving Party shall
promptly notify the Disclosing Party in writing upon learning of any
unauthorized disclosure or use of the Disclosing Party's Confidential
Information by such persons.
(e) Upon the Disclosing Party's written request following the termination
of this Agreement, the Receiving Party promptly shall return to the Disclosing
Party, or destroy, all Confidential Information of the Disclosing Party provided
under or in connection with this Agreement, including all copies, portions and
summaries thereof. Notwithstanding the foregoing sentence, (a) the Receiving
Party may retain one copy of each item of the Disclosing Party's Confidential
Information for purposes of identifying and establishing its rights and
obligations under this Agreement, for archival or audit purposes and/or to the
extent required by applicable law, and (b) the Distributor shall have no
obligation to return or destroy Confidential Information of the Company that
resides in saved tapes of Distributor; provided, however, that in either case
all such Confidential Information retained by the Receiving Party shall remain
subject to the provisions of Article 19 for so long as it is so retained. If
requested by the Disclosing Party, the Receiving Party shall certify in writing
its compliance with the provisions of this paragraph.
ARTICLE: 20. Privacy. Nonpublic personal financial information relating to
consumers or customers of the Funds provided by, or at the direction of, the
Company to the Distributor, or collected or retained by the Distributor to
perform its obligations as distributor, shall be considered Confidential
Information. The Distributor shall not disclose or otherwise use any nonpublic
persona1 financial information relating to present or former shareholders of the
Funds other than for the purposes for which that information was disclosed to
the Distributor, including use under an exception in Rules 13, 14 or 15 of SEC
Regulation S-P in the ordinary course of business to carry out those purposes.
The Distributor shall have in place and maintain physical, electronic and
procedural safeguards reasonably designed to protect the security,
confidentiality and integrity of, and to prevent unauthorized access to or use
of, records and information relating to consumers and customers of the Funds.
ARTICLE 21. Anti-Money Laundering. The Distributor represents that it has in
place anti-money laundering procedures which comply with applicable law in
jurisdictions in which Shares are distributed.
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The Distributor agrees to notify the Company of any suspicious activity of which
it becomes aware relating to transactions involving Shares. Upon reasonable
request, the Distributor agrees to provide the Company with documentation
relating to its anti-money laundering policies and procedures. The Distributor
shall include specific contractual provisions regarding anti-money laundering
compliance obligations in agreements entered into by the Distributor with any
dealer that is authorized to effect transactions in Shares.
ARTICLE 22. Use of Name.
(a) The Company shall not use the name of the Distributor, or any of its
affiliates, in any prospectus or statement of additional information, sales
literature, and other material relating to the Company in any manner without the
prior written consent of the Distributor (which shall not be unreasonably
withheld); provided, however, that the Distributor hereby approves all lawful
uses of the names of the Distributor and its affiliates in the prospectus and
statement of additional information of the Company and in all other materials
which merely refer in accurate terms to their appointment hereunder or which are
required by applicable law, regulations or otherwise by the SEC, NASD, or any
state securities authority.
(b) Neither the Distributor nor any of its affiliates shall use the name
of the Company in any publicly disseminated materials, including sales
literature, in any manner without the prior written consent of the Company
(which shall not be unreasonably withheld); provided, however, that the Fund
hereby approves all lawful uses of its name in any required regulatory filings
of the Distributor which merely refer in accurate terms to the appointment of
the Distributor hereunder, or which are required by applicable law, regulations
or otherwise by the SEC, NASD, or any state securities authority.
ARTICLE 23. Insurance. The Distributor agrees to maintain liability insurance
coverage which is, in scope and amount, consistent with coverage customary in
the industry for distribution activities similar to the distribution activities
provided to the Company hereunder. The Distributor shall notify the Company upon
receipt of any notice of material, adverse change in the terms or provisions of
its insurance coverage that may materially and adversely affect the Company's
rights hereunder. Such notification shall include the date of change and the
reason or reasons therefor. The Distributor shall notify the Company of any
material claims against it, whether or not covered by insurance that may
materially and adversely affect the Company's rights hereunder.
ARTICLE 24. Survival of Indemnification. The indemnifications provided by a
party hereunder shall be a continuing obligation of such party, its successors
and assigns, notwithstanding the termination of this Agreement.
ARTICLE 25. Separate Portfolios. This Agreement shall be construed to be made by
the Company as a separate Agreement with respect to each Fund, and under no
circumstances shall the rights, obligations or remedies with respect to a
particular Fund be deemed to constitute a right, obligation or remedy applicable
to any other Fund.
*****
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IN WITNESS WHEREOF, the Company and Distributor have each duly executed
this Agreement, as of the day and year above written.
TD ASSET MANAGEMENT USA FUNDS INC. SEI INVESTMENTS DISTRIBUTION CO.
By:/s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------- ------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: VP Title: COO & SVP
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SCHEDULE A
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NASD Review
o Review and approve all Fund marketing materials for compliance with SEC &
NASD advertising rules
o Conduct NASD filing of materials
o Respond to NASD comments on marketing materials, as necessary
o Provide the Company with copy of SEI's SEC & NASD Marketing Materials
Guidebook
o Provide access to the Distributor's proprietary marketing automated review
system
Contract Management
o Coordinate and execute sub-distribution agreements with broker/dealers on
behalf of Funds
o Coordinate and execute operational agreements related to the services
contemplated by this Agreement (networking agreements, NSCC redemption
agreements, etc.)
o Coordinate and execute on behalf of the Company shareholder service and
similar agreements to the extent permitted by applicable law, and as
contemplated by the Company's distribution and/or shareholder servicing
plan
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SCHEDULE B
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Fees
The Distributor shall receive from the Company, to the extent available pursuant
to Article 5(c) hereof, fees in the amount of $25,000 annually, payable in
equally monthly installments of $2083.33, and to the extent not available, the
Distributor shall look solely to the Company's investment adviser for the
payment of such fees.
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SCHEDULE C
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PORTFOLIOS AND CLASSES
TDAM Money Market Portfolio - Investor Class
TDAM Money Market Portfolio - Premium Class
TDAM Money Market Portfolio - Class A
TDAM Money Market Portfolio - Select Class
TDAM U.S. Government Portfolio - Investor Class
TDAM U.S. Government Portfolio - Class A
TDAM Municipal Portfolio - Investor Class
TDAM Municipal Portfolio - Class A
TDAM California Municipal Money Market Portfolio - Investor Class
TDAM California Municipal Money Market Portfolio - Class A
TDAM New York Municipal Money Market Portfolio - Investor Class
TDAM New York Municipal Money Market Portfolio - Class A
TDAM Institutional Money Market Portfolio - Institutional Class
TDAM Institutional Money Market Portfolio - Institutional Service Class
TDAM Institutional U.S. Government Fund - Institutional Class
TDAM Institutional U.S. Institutional Government
Fund - Institutional Service Class
TDAM Short-Term Investment Fund
TDAM Short-Term Bond Fund
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