EXHIBIT 99(d)(5)
INVESTMENT ADVISORY AGREEMENT
-----------------------------
THIS AGREEMENT is made and entered into on April 16, 2004 between
Tamarack Funds Trust ("Trust"). a Delaware statutory trust, on behalf of its
series, Tamarack Value Fund ("Fund"), and Voyageur Asset Management Inc, a
Minnesota corporation ("Adviser").
RECITALS
WHEREAS, the Trust is an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust desires to retain the Adviser, which is a registered
investment adviser under the Investment Advisers Act of 1940, as amended, to act
as investment adviser for the Fund and to manage its assets.
NOW, THEREFORE, the Trust and the Adviser do mutually agree and promise
as follows:
1. EMPLOYMENT.
(a) The Trust hereby appoints Adviser as investment
adviser for the Fund, and Adviser accepts such appointment. Subject to
the supervision of the Trust's Board of Trustees and the terms of this
Agreement, the Adviser shall act as investment adviser for and manage
the investment and reinvestment of the assets of the Fund. The Adviser
shall discharge the foregoing responsibilities subject to the control
of the Trust's Board of Trustees and in compliance with such policies
as the Board of Trustees may from time to time establish, and in
compliance with the objectives, policies, and limitations for the Fund
set forth in the Fund's prospectus(es) and statement of additional
information, as amended or supplemented from time to time, and
applicable laws and regulations. The Adviser shall (i) provide for use
by the Fund, at the Adviser's expense, office space and all necessary
office facilities, equipment and personnel for servicing the
investments of the Fund, (ii) pay the salaries and fees of all officers
and Trustees of the Trust who are "interested persons" of the Adviser
as such term is defined in the 1940 Act, and (iii) pay for all clerical
services relating to research, statistical and investment work.
(b) The Adviser is authorized to delegate any or all
of its rights, duties and obligations under this Agreement (subject in
any event to all of the limitations, terms and conditions applicable to
the Adviser hereunder) to one or more sub-advisers, and may enter into
agreements with sub-advisers, and may replace any such sub-advisers
from time to time in its discretion, in accordance with the 1940 Act,
the Investment Advisers Act of 1940, as amended ("Advisers Act"), and
rules and regulations thereunder, as such statutes, rules and
regulations are amended from time to time or are interpreted from time
to time by the staff of the Securities and Exchange Commission ("SEC"),
and if applicable, exemptive orders or similar relief granted by the
SEC, upon receipt of approval of any such sub-advisers by the Trust's
Board of Trustees and by the Fund's shareholders (unless any such
approval is not required by such statutes, rules, regulations,
interpretations, orders or similar relief). The Adviser shall oversee
the performance of any sub-adviser engaged hereunder. However, the
Adviser shall not be accountable to the
Trust or the Fund for any loss or liability relating to specific
investment decisions made solely by any sub-adviser. The Adviser may
not terminate any sub-advisory agreement relating to the Fund without
approval by a majority of the Trust's independent Trustees.
(c) The services of the Adviser to the Fund are not
to be deemed exclusive, and the Adviser shall be free to render similar
services to others as long as its services for others do not in any way
hinder, preclude or prevent the Adviser from performing its duties and
obligations under this Agreement.
2. ALLOCATION OF BROKERAGE.
(a) The Adviser is authorized, subject to the
supervision of the Trust's Board of Trustees and consistent with any
policies and procedures the Board of Trustees may from time to time
adopt, to place orders for the purchase and sale of securities and to
negotiate commissions to be paid on such transactions. The Adviser is
authorized to select the brokers or dealers that will execute the
purchases and sales of securities for the Fund and is directed to use
its best efforts to obtain the best net results as described in the
Fund's statement of additional information.
(b) Subject to the appropriate policies and
procedures approved by the Trust's Board of Trustees, the Adviser may,
on behalf of the Fund, pay brokerage commissions to a broker which
provides brokerage and research services to the Adviser in excess of
the amount another broker would have charged for effecting the
transaction, provided (i) the Adviser determines in good faith that the
amount is reasonable in relation to the value of the brokerage and
research services provided by the executing broker in terms of the
particular transaction or in terms of the Adviser's overall
responsibilities with respect to the Fund and the accounts as to which
the Adviser exercises investment discretion, (ii) such payment is made
in compliance with Section 28(e) of the Securities Exchange Act of
1934, as amended, and other applicable state and federal laws, and
(iii) in the opinion of the Adviser, the total commissions paid by the
Fund will be reasonable in relation to the benefits to the Fund over
the long term. Subject to seeking the most favorable price and
execution, the Board of Trustees may cause the Adviser to effect
transactions in portfolio securities through broker-dealers in a manner
that will help generate resources to pay the cost of certain expenses
which the Fund is required to pay or for which the Fund is required to
arrange payment.
(c) When the Adviser deems the purchase or sale of a
security to be in the best interest of the Fund as well as other of its
clients, the Adviser to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the
securities to be purchased or sold to attempt to obtain a more
favorable price or lower brokerage commissions and efficient execution.
In such event, allocation of the securities so purchased or sold, as
well as the expenses incurred in the transaction, will be made by the
Adviser in the manner the Adviser considers to be the most equitable
and consistent with its fiduciary obligations to the Fund and its other
affected clients.
2
3. EXPENSES. The Fund will pay all its expenses and the Fund's
allocable share of the Trust's expenses, other than those expressly
stated to be payable by the Adviser hereunder, which expenses payable
by the Fund shall include, without limitation, interest charges, taxes,
brokerage commissions and similar expenses, distribution and
shareholder servicing expenses, expenses of issue, sale, repurchase or
redemption of shares, expenses of registering or qualifying shares for
sale, expenses of printing and distributing prospectuses to existing
shareholders, charges of custodians (including sums as custodian and
for keeping books and similar services), transfer agents (including the
printing and mailing of reports and notices to shareholders),
registrars, auditing and legal services, clerical services related to
recordkeeping and shareholder relations, printing of share
certificates, fees for Trustees who are not "interested persons" of the
Adviser, and other expenses not expressly assumed by the Adviser under
Paragraph 1(a) above or under any other agreement. Anything to the
contrary herein notwithstanding, the Adviser may at any time and from
time to time assume or reimburse any expense payable by the Fund
pursuant to this Agreement.
4. AUTHORITY OF ADVISER. The Adviser shall for all purposes
herein be considered an independent contractor and shall not, unless
expressly authorized and empowered by the Trust or the Fund, have
authority to act for or represent the Trust or the Fund in any way,
form or manner. Any authority granted by the Trust or the Fund on
behalf of itself to the Adviser shall be in the form of a resolution or
resolutions adopted by the Board of Trustees of the Trust.
5. COMPENSATION OF ADVISER. For the services to be furnished
by the Adviser hereunder, the Fund shall pay the Adviser, and the
Adviser agrees to accept as full compensation for all services rendered
hereunder, an Advisory Fee. The Advisory Fee shall be calculated by
applying a daily rate, based on the annual percentage rates as set
forth in Schedule A of the net asset value of the Fund determined as of
the close of business on each business day and payable monthly in
arrears on the first business day of the next following month. Anything
to the contrary herein notwithstanding, the Adviser may at any time and
from time to time waive any part or all of any fee payable to it
pursuant to this Agreement.
6. STANDARD OF CARE; INDEMNIFICATION.
(a) In the absence of willful misfeasance, bad faith,
gross negligence or reckless disregard of obligations or duties
hereunder on the part of the Adviser, the Adviser shall not be subject
to liability to the Trust or the Fund or to any shareholder for any act
or omission in the course of, or connected with, rendering services
hereunder or for any losses that may be sustained in the purchase,
holding or sale of any security. The Adviser makes no representation or
warranty, express or implied, that any level of performance or
investment results will be achieved by the Fund or that the Fund will
perform comparably with any standard or index, including other clients
of the Adviser, whether public or private.
(b) The Adviser agrees to indemnify the Fund with
respect to any loss, liability, judgment, cost or penalty which the
Fund may directly or indirectly suffer or incur as a result of a
material breach by the Adviser of its standard of care set forth in
Paragraph 6(a). The Trust, on behalf of the Fund, agrees to indemnify
the Adviser with respect to any loss, liability,
3
judgment, cost or penalty which the Adviser may directly or indirectly
suffer or incur in any way arising out of the performance of its duties
under this Agreement, except to the extent that such loss, liability,
judgment, cost or penalty was a result of a material breach by the
Adviser of its standard of care set forth in Paragraph 6(a).
7. DURATION AND TERMINATION. The following shall apply with
respect to the duration and termination of this Agreement:
(a) This Agreement shall begin as of the date this
Agreement is first executed (provided that the Agreement is initially
approved by the Trust's Board of Trustees and Fund shareholder(s) as
required by Section 15 of the 0000 Xxx) and shall continue in effect
for one year. Thereafter, this Agreement shall remain in effect, for
successive periods of one year, subject to the provisions for
termination and all of the other terms and conditions hereof if: (i)
such continuation shall be specifically approved at least annually by
(A) either the Trust's Board of Trustees or a majority of the Fund's
outstanding voting securities, and in either case (B) a majority of the
Trust's Trustees who are not parties to this Agreement or interested
persons of any such party other than as Trustees of the Trust (the
"Independent Trustees"), cast in person at a meeting called for that
purpose; and (ii) the Adviser shall not have notified the Trust in
writing at least sixty (60) days prior to the anniversary date of this
Agreement in any year thereafter that it does not desire such
continuation. Prior to voting on the renewal of this Agreement, the
Trust's Board of Trustees may request and evaluate, and the Adviser
shall furnish, such information as may reasonably be necessary to
enable the Trust's Board of Trustees to evaluate the terms of this
Agreement.
(b) Notwithstanding whatever may be provided herein
to the contrary, this Agreement may be terminated at any time, without
payment of any penalty, by affirmative vote of a majority of the
Trust's Board of Trustees, or by vote of a majority of the outstanding
voting securities of the Fund, as defined in Section 2(a)(42) of the
1940 Act, or by the Adviser, in each case, upon sixty (60) days'
written notice to the other party and shall terminate automatically in
the event of its "assignment" (as that term is defined in the 1940
Act). No assignment shall be deemed to result from any changes in the
directors, officers or employees of the Adviser except as may be
provided to the contrary in the 1940 Act or the rules or regulations
thereunder.
8. AMENDMENT. Except to the extent permitted by the 1940 Act
or the rules or regulations thereunder or pursuant to exemptive relief
granted by the SEC, this Agreement may be amended by the parties only
if such amendment, if material, is specifically approved by the vote of
a majority of the outstanding voting securities of the Fund (unless
such approval is not required by Section 15 of the 1940 Act as
interpreted by the SEC or its staff or unless the SEC has granted an
exemption from such approval requirement) and by the vote of a majority
of the Board of Trustees of the Trust, including a majority of the
Independent Trustees, cast in person at a meeting called for the
purpose of voting on such approval.
4
9. NOTICE. Any notice that is required to be given by the
parties to each other under the terms of this Agreement shall be in
writing, addressed and delivered, or mailed postpaid to the other party
at the principal place of business of such party.
10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota and the
applicable provisions of the 1940 Act. To the extent that the
applicable laws of the State of Minnesota, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the
latter shall control.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed as of the day and year first stated above.
TAMARACK FUNDS TRUST, on behalf of
TAMARACK VALUE FUND
By: /s/ Xxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: President and CEO
VOYAGEUR ASSET MANAGEMENT INC.
By: /s/ Xxxxxxx Xxx
----------------------------------
Name: Xxxxxxx X. Xxx
Title: Chief Operating Officer
5
SCHEDULE A
Compensation pursuant to Paragraph 5 of this Agreement shall
be calculated in accordance with the following schedules:
Name of Fund Annual Fee Rate
TAMARACK VALUE FUND Eighty-five one-hundredths of one
percent (85/100of 1%) of the average
total net assets of the Fund.
ATTEST:
TAMARACK FUNDS TRUST VOYAGEUR ASSET MANAGEMENT INC.
on behalf of TAMARACK VALUE FUND
By: /s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxx
----------------------------- ------------------------------
Name: Xxxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxx
Title: President and CEO Title: Chief Operating Officer
6
