Exhibit 23(h)(3)(A)
FUND ACCOUNTING AGREEMENT
AGREEMENT made this 31st day of March 2004, between TAMARACK FUNDS
TRUST (the "Trust"), a Delaware statutory trust, which has its principal place
of business at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, and BISYS
FUND SERVICES OHIO, INC. ("BISYS"), an Ohio limited partnership having its
principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust desires that BISYS perform fund accounting services
for the Trust and each investment portfolio of the Trust as now in existence and
listed on Schedule A, or as hereafter may be established from time to time
(individually referred to herein as the "Fund" and collectively as the "Funds");
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement; and
WHEREAS, BISYS and the Trust wish to enter into this Agreement in order
to set forth the terms under which BISYS will perform the fund accounting
services set forth herein for the Trust.
NOW, THEREFORE, in consideration of the covenants hereinafter
contained, the Trust and BISYS hereby agree as follows:
1. Services as Fund Accountant
(a) Maintenance of Books and Records. BISYS will keep and maintain the
following books and records of each Fund pursuant to Rule 31a-1 (the "Rule")
under the Investment Company Act of 1940, as amended (the "1940 Act"):
(i) Journals containing an itemized daily record in detail of all
purchases and sales of securities, all receipts and
disbursements of cash and all other debits and credits, as
required by subsection (b)(1) of the Rule;
(ii) General and auxiliary ledgers reflecting all asset, liability,
reserve, capital, income and expense accounts, including
interest accrued and interest received, as required by
subsection (b)(2)(i) of the Rule;
(iii) Separate ledger accounts required by subsection (b)(2)(ii) and
(iii) of the Rule;
(iv) A monthly trial balance of all ledger accounts (except
shareholder accounts) as required by subsection (b)(8) of the
Rule; and
(v) A record of any puts, calls, straddles, and options as
required by subsection (b)(7)
1
(b) Performance of Daily Accounting Services. In addition to the
maintenance of the books and records specified above, BISYS shall perform the
following accounting services daily for each Fund:
(i) Calculate the net asset value per share utilizing prices
obtained from the sources described in subsection 1(b)(ii)
below in accordance with the subject Fund's prospectus; BISYS
shall generally follow SEC guidance for dealing with any
pricing errors unless otherwise agreed with the Trust;
(ii) Obtain security prices from independent pricing services, or
if such quotes are unavailable, then obtain such prices from
each Fund's investment adviser or its designee, as approved by
the Trust's Board of Trustees (hereafter referred to as the
"Board");
(iii) Verify and reconcile with the Funds' custodian all daily trade
activity;
(iv) Compute, as appropriate, each Fund's net income and capital
gains, dividend payables, dividend factors, 7-day yields,
7-day effective yields, 30-day yields, and weighted average
portfolio maturity;
(v) Review daily the net asset value calculation and dividend
factor (if any) for each Fund prior to release to
shareholders, check and confirm the net asset values and
dividend factors for reasonableness and deviations, and
distribute net asset values and yields to NASDAQ;
(vi) Report to the Trust the daily market pricing of securities in
any money market Funds, with the comparison to the amortized
cost basis;
(vii) Determine unrealized appreciation and depreciation on
securities held in variable net asset value Funds;
(viii) Amortize premiums and accrete discounts on securities
purchased at a price other than face value;
(ix) Update fund accounting system to reflect rate changes, as
received from a Fund's investment adviser, on variable
interest rate instruments;
(x) Post Fund transactions to appropriate categories;
(xi) Accrue expenses of each Fund according to instructions
received from the Trust's Administrator or Sub-Administrator;
(xii) Determine the outstanding receivables and payables for all (1)
security trades, (2) Fund share transactions and (3) income
and expense accounts;
(xiii) Provide accounting reports in connection with the Trust's
regular annual audit and other audits and examinations by
regulatory agencies; and
2
(xiv) Provide such periodic reports as the parties shall agree upon,
as set forth in a separate schedule or otherwise agreed in
writing.
(c) Special Reports and Services.
(i) BISYS may provide additional special reports upon the request
of the Trust or a Fund's investment adviser, which may result
in an additional charge, the amount of which shall be agreed
upon between the parties.
(ii) BISYS may provide such other similar services with respect to
a Fund as may be reasonably requested by the Trust, which may
result in an additional charge, the amount of which shall be
agreed upon between the parties.
(d) Additional Accounting Services. BISYS shall also perform the
following additional accounting services for each Fund, without additional
compensation:
(i) Provide monthly a hard copy of the unaudited financial
statements described below. The unaudited financial statements
will include the following items:
(A) Unaudited Statement of Assets and Liabilities,
(B) Unaudited Statement of Operations,
(C) Unaudited Statement of Changes in Net Assets, and
(D) Unaudited Condensed Financial Information;
(ii) Provide accounting information for the following:
(A) federal and state income tax returns and federal
excise tax returns;
(B) the Trust's semi-annual reports with the Securities
and Exchange Commission ("SEC") on Form N-SAR and
N-CSR;
(C) the Trust's annual, semi-annual and quarterly (if
any) shareholder reports;
(D) registration statements on Form N-1A and other
filings relating to the registration of shares;
(E) monitoring of the Trust's status as a regulated
investment company under Subchapter M of the Internal
Revenue Code of 1986, as amended, (the "Code") and,
when applicable, compliance with Section 817(h) of
the Code, as amended;
(F) annual audit by the Trust's auditors; and
3
(G) examinations performed by the SEC.
2. Subcontracting
BISYS may, at its expense and with prior consent of the Trust,
subcontract with any entity or person concerning the provision of fund
accounting services contemplated hereunder (a "Sub-Fund Accountant"); provided,
however, that BISYS shall not be relieved of any of its duties and obligations
under this Agreement by the appointment of such Sub-Fund Accountant and provided
further, that, subject to Section 5 hereof, BISYS shall be responsible, for all
acts of such subcontractor as if such acts were its own. The Sub-Fund Accountant
shall be the agent of BISYS and shall not be the agent of the Trust or any Fund.
The Trust herewith consents to BISYS subcontracting the services herein
to BISYS Fund Services Limited Partnership through May 31, 2005 and until such
date thereafter as BISYS and the Trust mutually agree.
3. Compensation
The Trust shall pay BISYS compensation for the services to be provided
by BISYS under this Agreement in accordance with, and in the manner set forth in
Schedule B attached hereto.
4. Reimbursement of Expenses and Miscellaneous Service Fees
(a) In addition to paying BISYS the fees provided in Section 3 and
Schedule B, the Trust agrees to reimburse BISYS for its reasonable out-of-pocket
expenses in providing services hereunder, including without limitation the
following:
(i) All freight and other delivery and bonding charges incurred by
BISYS in delivering materials to and from the Trust;
(ii) All direct telephone, telephone transmission and telecopy or
other electronic transmission expenses incurred by BISYS in
communication with the Trust, the Trust's investment adviser
or custodian, dealers or others as required for BISYS to
perform the services to be provided hereunder;
(iii) The cost of microfilm or microfiche of records or other
materials;
(iv) Systems-related expenses associated with the provision of
special reports and services as agreed pursuant to Section
1(c) herein;
(v) Any expenses BISYS shall incur at the written direction of an
officer of the Trust (other than an employee of BISYS)
thereunto duly authorized; and
4
(vi) Any additional expenses reasonably incurred by BISYS in the
performance of its duties and obligations under this Agreement
(but not including any amounts related to pricing information,
other than as provided in paragraph 4(b)(iii), below) with
prior consent of Funds if over $1500.
(b) In addition, BISYS shall be entitled to receive the following
amounts:
(i) Systems development fees billed at an hourly rate of $150 per
hour, as approved by the Trust;
(ii) Ad hoc reporting fees billed at an agreed upon rate; and
(iii) Charges for the pricing information obtained from third party
vendors for use in pricing the securities of each Fund's
portfolio pursuant to Section 1(b)(ii) of this Agreement,
which shall not exceed the amounts that would be incurred if
the Fund were to obtain the information directly from the
relevant vendor or vendors.
5. Standard of Care; Uncontrollable Events; Limitation of Liability
(a) BISYS shall use reasonable best efforts to ensure the accuracy and
timely performance of all services performed under this Agreement, but shall not
be liable to the Trust for any action taken or omitted by BISYS in the absence
of bad faith, willful misfeasance, negligence or reckless disregard by it of its
obligations and duties.
(b) BISYS shall maintain adequate and reliable computer and other
equipment necessary or appropriate to carry out its obligations under this
Agreement. Upon the Trust's reasonable request, BISYS shall provide supplemental
information concerning the aspects of its disaster recovery and business
continuity plan that are relevant to the services provided hereunder.
Notwithstanding the foregoing or any other provision of this Agreement, BISYS
assumes no responsibility hereunder, and shall not be liable for, any damage,
loss of data, delay or any other loss whatsoever caused by events beyond its
reasonable control. Events beyond BISYS's reasonable control include, without
limitation, force majeure events. Force majeure events include natural
disasters, actions or decrees of governmental bodies, and communication lines
failures that are not the fault of either party. In the event of force majeure,
computer or other equipment failures or other events beyond its reasonable
control, BISYS shall follow applicable procedures in its disaster recovery and
business continuity plan and use all commercially reasonable efforts to minimize
any service interruption. BISYS will make every reasonable effort to restore any
lost or damaged data and correct any errors resulting from such a breakdown at
the expense of BISYS. Representatives of the Trust shall be entitled to inspect
BISYS's premises and operating capabilities during regular business hours of
BISYS, upon reasonable notice and provision of a request for information
document to BISYS. Such inspection shall be limited to once per year.
(c) BISYS shall provide the Trust, at such times as the Trust may
reasonably require, copies of reports rendered by independent public accountants
on the internal
5
controls and procedures of BISYS relating to the services
provided by BISYS under this Agreement.
(d) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR SPECULATIVE OR CONSEQUENTIAL
DAMAGES, OR LOST PROFITS, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE
PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER
PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Term
This Agreement shall become effective as of the date first written
above and shall continue in effect until May 31, 2006 (the "Initial Term").
During the Initial Term this Agreement may be terminated only (i) by provision
of a notice of nonrenewal at least one hundred twenty (120) days prior to the
end of the Initial Term, (ii) by mutual agreement of the parties, (iii) for
"cause," as set forth below, or (iv) automatically with respect to any Fund (or
Class) in the event such Fund (or Class) is terminated by the Board for reasons
of economic viability of such Fund. After the Initial Term, this Agreement may
be terminated by either party with one hundred twenty (120) days' advance
written notice.
For purposes of this Agreement, termination for "cause" shall be
permissible (a) immediately by the non-breaching party upon a material breach of
this Agreement that has not been remedied for thirty (30) days following written
notice of such breach from the non-breaching party; (b) immediately by the other
party upon a final judicial, regulatory or administrative ruling or order in
which the party to be terminated has been found guilty of criminal or unethical
behavior in the conduct of its business; (c) immediately by the other party upon
financial difficulties on the part of the party to be terminated which are
evidenced by the authorization or commencement of, or involvement by way of
pleading, answer, consent or acquiescence in, a voluntary case under Title 11 of
the United States Code, as from time to time is in effect, or any applicable
law, other than said Title 11, of any jurisdiction relating to the liquidation
or reorganization of debtors or to the modification or alteration of the rights
of creditors, provided, however, that in the event of an involuntary case, the
party to be terminated shall not be terminated if such party diligently contests
the case within 60 days' of service of notice of the filing of such case and for
so long as such diligent contest continues, or (d) immediately by the other
party in the event of any circumstance which has substantially impaired the
performance of the obligations and duties of the party to be terminated or the
ability to perform these obligations and duties, as contemplated in this
Agreement, in each case for a period of more than thirty (30) days. BISYS shall
not terminate this Agreement pursuant to clause (a) above based solely upon the
Trust's failure to pay an amount to BISYS which is the subject of a good faith
dispute, if (i) the Trust is attempting in good faith to resolve such dispute
with as much expediency as may be possible under the circumstances, and (ii) the
Trust continues to perform its
6
obligations hereunder in all other material respects (including paying all fees
and expenses not subject to reasonable dispute hereunder).
Notwithstanding the foregoing, following any such termination, in the
event that BISYS in fact continues to perform any one or more of the services
contemplated by this Agreement (or any Schedule or exhibit hereto) with the
consent of the Trust, the provisions of this Agreement, including without
limitation the provisions dealing with indemnification, shall continue in full
force and effect. Fees and out-of-pocket expenses incurred by BISYS but unpaid
by the Trust upon such termination shall be due upon and notwithstanding such
termination and shall be payable prior to the final conversion of data and/or
delivery of records. BISYS shall be entitled to collect from the Trust, in
addition to the fees and disbursements provided by Sections 3 and 4 hereof, the
amount of all of BISYS's cash disbursements in connection with BISYS's
activities in effecting such termination, including without limitation, the
delivery to the Trust and/or its distributor or investment adviser and/or other
parties of the Trust's property, records, instruments and documents.
7. Indemnification
The Trust agrees to indemnify and hold harmless BISYS and its
employees, agents, directors, officers and nominees from and against any and all
claims, demands, actions and suits, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, counsel fees and other reasonable
expenses (including reasonable investigation expenses) of every nature and
character (collectively, "Losses") arising out of or in any way relating to or
resulting from BISYS's actions taken or omissions with respect to the
performance of services under this Agreement or based, if applicable, upon
reasonable reliance on information, records, instructions or requests given or
made to BISYS by the Trust, the investment adviser, administrator,
sub-administrator or custodian thereof; provided that this indemnification shall
not apply to actions or omissions of BISYS in cases of its own bad faith,
willful misfeasance, negligence or reckless disregard by it of its obligations
and duties.
Subject to Section 5(d) BISYS shall indemnify, defend, and hold the
Trust and its employees, agents, directors, officers, and nominees harmless from
and against any and all Losses arising out of or in any way relating to or
resulting from BISYS's willful misfeasance, bad faith or negligence in the
performance of its duties, or by reason of reckless disregard of its obligations
and duties hereunder.
The indemnification rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any pending or
threatened litigation with respect to which indemnification hereunder may
ultimately be merited. In order that the indemnification provisions contained
herein shall apply, however, it is understood that if in any case a party may be
asked to indemnify or hold the other party harmless, the indemnifying party
shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the indemnified party
will use all reasonable care to identify and notify the indemnifying party
promptly concerning any situation which presents or appears likely to present
the probability of such a claim for
7
indemnification against the indemnifying party, but failure to do so in good
faith shall not affect the rights hereunder except to the extent the
indemnifying party is materially prejudiced thereby. As to any matter eligible
for indemnification, an indemnified party shall act reasonably and in accordance
with good faith business judgment and shall not effect any settlement or confess
judgment without the consent of the indemnifying party, which consent shall not
be withheld or delayed unreasonably.
The indemnifying party shall be entitled to participate at its own
expense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the indemnifying
party elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by it and reasonably satisfactory to the indemnified
party, whose approval shall not be unreasonably withheld. In the event that the
indemnifying party elects to assume the defense of any suit and retain counsel,
the indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of suit, it will reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by the indemnified party. The indemnity and
defense provisions set forth herein shall indefinitely survive the termination
of this Agreement.
8. Record Retention and Confidentiality
BISYS shall keep and maintain on behalf of the Trust all books and
records which the Trust or BISYS is, or may be, required to keep and maintain
pursuant to any applicable statutes, rules and regulations, including without
limitation Rules 31a-1 and 31a-2 under the 1940 Act, relating to the maintenance
of books and records in connection with the services to be provided hereunder.
Any records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by BISYS on behalf of
the Trust shall be prepared and maintained at the expense of BISYS, but shall be
the property of the Trust and will be surrendered promptly to the Trust on
request, and made available for inspection by the Trust or by the Commission at
reasonable times.
In case of any request or demand for the inspection of such records by
another party, BISYS shall notify the Trust and follow the Trust's instructions
as to permitting or refusing such inspection; provided that BISYS may exhibit
such records in any case where (i) disclosure is required by law, (ii) BISYS is
advised by counsel that it may incur liability for failure to make a disclosure,
(iii) BISYS is requested to divulge such information by duly-constituted
authorities or court process, or (iv) BISYS is requested to make a disclosure by
the Trust. BISYS shall otherwise keep confidential all books and records
relating to the Funds. BISYS shall provide the Trust with reasonable advance
notice of disclosure pursuant to items (i) - (iii) of the previous sentence, to
the extent reasonably practicable.
9. Activities of BISYS
The services of BISYS rendered to the Trust hereunder are not to be
deemed to be exclusive. BISYS is free to render such services to others and to
have other businesses
8
and interests. It is understood that Board members, officers, employees and
Shareholders of the Trust are or may be or become interested in BISYS, as
officers, employees or otherwise and that partners, officers and employees of
BISYS and its counsel are or may be or become similarly interested in the Trust,
and that BISYS may be or become interested in the Trust as a shareholder or
otherwise.
10. Reports
BISYS shall furnish to the Trust and to its properly authorized
auditors, investment advisers, examiners, distributors, dealers, underwriters,
salesmen, insurance companies and others designated by the Trust in writing,
such reports and at such times as are prescribed pursuant to the terms and the
conditions of this Agreement to be provided or completed by BISYS, or as
subsequently agreed upon by the parties pursuant to an amendment hereto. The
Trust agrees to examine such report or copy within twenty (20) days and will
promptly report or cause to be reported any errors or discrepancies therein.
11. Rights of Ownership
All computer programs and procedures employed or developed by or on
behalf of BISYS to perform services required to be provided by BISYS under this
Agreement are the property of BISYS. All records and other data except such
computer programs and procedures are the exclusive property of the Trust and all
such other records and data shall be furnished to the Trust in appropriate form
as soon as practicable after termination of this Agreement for any reason and in
accordance with Section 12.
12. Return of Records
BISYS may at its option at any time, and shall promptly upon the
Trust's demand, turn over to the Trust and cease to retain BISYS's files,
records and documents created and maintained by BISYS pursuant to this Agreement
which are no longer needed by BISYS in the performance of its services or for
its legal protection. If not so turned over to the Trust, such documents and
records will be retained by BISYS for six years from the year of creation. At
the end of such six-year period, such records and documents will be turned over
to the Trust unless the Trust authorizes in writing the destruction of such
records and documents.
13. Representations and Warranties
(a) The Trust represents and warrants that: (1) as of the close of
business on the effective date of this Agreement, each Fund that is in existence
as of the effective date has authorized unlimited shares, and (2) this Agreement
has been duly authorized by the Trust and, when executed and delivered by the
Trust, will constitute a legal, valid and binding obligation of the Trust,
enforceable against the Trust 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
(3) it is a trust or corporation duly organized and in good standing under the
laws of the
9
jurisdiction of its formation and qualified to do business in any jurisdiction
where its activities so require.
(b) BISYS represents and warrants that: (1) the various procedures and
systems which BISYS has implemented with regard to safeguarding from loss or
damage attributable to fire, theft, or any other cause the records, and other
data of the Trust and BISYS's records, data, equipment facilities and other
property used in the performance of its obligations hereunder are adequate and
that it will make such changes therein from time to time as are reasonably
required for the secure performance of its obligations hereunder; (2) 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; and (3) in
accordance with Section 5(b) it has in place and will continue to maintain, and
update as necessary, a reasonable disaster recovery program designed to minimize
disruptions in services contemplated under this Agreement.
14. Insurance
BISYS shall maintain a fidelity bond covering larceny and embezzlement
and an insurance policy with respect to directors and officers errors and
omissions coverage in amounts that are appropriate in light of its duties and
responsibilities hereunder. Upon the request of the Trust, BISYS shall provide
evidence that coverage is in place. BISYS shall notify the Trust should its
insurance coverage with respect to professional liability or errors and
omissions coverage be canceled or reduced in any material respect. Such
notification shall include the date of cancellation and the reasons therefore.
BISYS shall notify the Trust of any material claims against it with respect to
services performed under this Agreement, whether or not they may be covered by
insurance, and shall notify the Trust should the total outstanding claims made
by BISYS under its insurance coverage materially impair, or threaten to
materially impair, the adequacy of its coverage.
15. Information Furnished by the Trust
The Trust has furnished to BISYS the following, as amended and current
as of the effective date of this Agreement:
(a) Copies of the Declaration of Trust or Articles of Incorporation of
the Trust and of any amendments thereto, certified by the proper official of the
state in which such document has been filed.
(b) Certified copies of the following documents:
(i) The Trust's Bylaws and any amendments thereto;
(ii) Resolutions of the Board covering (A) approval of this
Agreement and authorization of one or more officers of the
Trust to execute and deliver this Agreement and authorization
for specified officers of the Trust to
10
instruct BISYS hereunder, and (B) authorization of BISYS to
act as fund accountant for the Trust.
(c) A list of all officers of the Trust and any other persons (who may
be associated with the Trust or its investment advisor), together with specimen
signatures of those officers and other persons, who are authorized to instruct
BISYS in all matters.
(d) Two copies of the Prospectuses and Statement of Additional
Information of each Fund.
16. Information Furnished by BISYS
BISYS has furnished to the Trust evidence of the following:
(a) Approval of this Agreement by BISYS, and authorization of a
specified officer of BISYS to execute and deliver this Agreement;
(b) Authorization of BISYS to act as fund accountant for the Trust.
17. Amendments to Documents
The Trust shall give BISYS reasonable advance notice of any amendments
to, or changes in, any of the items referred to in Section 15 and shall provide
BISYS with a written copy thereof forthwith upon such amendments or changes
becoming effective. In addition, the Trust agrees that no amendments will be
made to the Prospectuses or Statements of Additional Information of the Trust
which might have the effect of materially changing the procedures employed by
BISYS in providing the services agreed to hereunder or which amendment might
materially affect the duties of BISYS hereunder. In the event Trust desires to
make any such amendment that would materially change BISYS procedures or
materially affect BISYS's duties, the parties will use reasonable best efforts
to promptly agree the actions necessary by each party to effect such amendment
and the appropriate allocation between them of all costs and expenses associated
therewith.
18. Legal Advice; Reliance on Prospectus and Instructions
BISYS may apply to the Trust at any time for instructions and may
consult with counsel for the Trust and with accountants and other experts with
respect to any matter arising in connection with BISYS's duties, and BISYS shall
not be liable nor accountable for any action taken or omitted by it in good
faith in accordance with such instruction or with such instructions or the
opinion of such counsel, accountants or other experts.
As to the services to be provided hereunder, BISYS may rely
conclusively upon the terms of the Prospectuses and Statement of Additional
Information of the Trust relating to the relevant Funds to the extent that such
services are described therein, as well as the minutes of Board meetings (if
applicable) and other records of the Trust unless BISYS receives written
instructions to the contrary in a timely manner from the Trust.
11
Also, BISYS shall be protected in acting upon any document which it
reasonably believes to be genuine and to have been signed or presented by an
officer or other authorized agent (including the investment advisor, custodian
and auditor) of the Trust or by any other person with appropriate legal or
regulatory authority regarding the Trust. BISYS will not be held to have notice
of any change of authority of any officers, employees or agents of the Trust
until receipt of written notice thereof from the Trust.
19. Compliance with Law
(a) Except as otherwise expressly set forth herein, the Trust assumes
full responsibility for the preparation, contents and distribution of each
prospectus of the Trust as to compliance with all applicable requirements of the
Securities Act of 1933, as amended (the "Securities Act"), the 1940 Act and any
other laws, rules and regulations of governmental authorities having
jurisdiction. BISYS shall have no obligation to take cognizance of any laws
relating to the sale of the Trust's shares.
(b) Subject to Section 19(a), BISYS undertakes to comply with all
applicable requirements of the securities laws and any laws, rules and
regulations applicable to the duties to be performed by BISYS hereunder.
20. Notices
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Trust, to it at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000; Attn: General Counsel; and if to
BISYS, to it at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000; Attn: President, or at
such other address as such party may from time to time specify in writing to the
other party pursuant to this Section.
21. Assignment
This Agreement and the rights and duties hereunder shall not be
assignable with respect to a Fund by either of the parties hereto except by the
specific written consent of the other party. This Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
22. Governing Law
This Agreement shall be governed by and provisions shall be construed
in accordance with the laws of the State of New York and the applicable
provisions of the 1940 Act. To the extent that the applicable laws of the State
of New York, or any of the provisions herein, conflict with the applicable
provisions of the 1940 Act, the latter shall control.
23. Privacy
Nonpublic personal financial information relating to consumers or
customers of the Trust provided by, or at the direction of the Trust to BISYS,
or collected or retained
12
by BISYS to perform its duties shall be considered confidential information.
BISYS shall not give, sell or in any way transfer such confidential information
to any person or entity, other than affiliates of BISYS involved in performing
its obligations under this Agreement except at the direction of the Trust or as
required or permitted by law. BISYS 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 or customers of the
Trust. The Trust represents to BISYS that it has adopted a Statement of its
privacy policies and practices as required by the Commission's Regulation S-P
and agrees to provide BISYS with a copy of that statement annually.
24. Miscellaneous
(a) Paragraph headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the parties
hereto as to the subject matter covered by this Agreement, and supercedes all
prior negotiations, understandings and agreements bearing upon the subject
matter covered herein.
(c) 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.
(d) No amendment to this Agreement shall be valid unless made in
writing and executed by both parties hereto. Without limiting the foregoing,
BISYS may conclusively assume that any special procedure which has been approved
by an executive officer of the Trust (other than an officer or employee of
BISYS) does not conflict with or violate any requirements of the Trust's
Articles of Incorporation or Declaration of Trust, By-Laws or then-current
prospectuses, or any rule, regulation or requirement of any regulatory body.
(e) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund are separate and distinct
from the assets and liabilities of each other Fund and that no Fund shall be
liable or shall be charged for any debt, obligation or liability of any other
Fund, whether arising out of this Agreement, or otherwise.
(f) The provisions of section 5, 7, 8, 20, 22, 23 and 24 shall survive
the termination of this Agreement.
* * * * *
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
TAMARACK FUNDS TRUST BISYS FUND SERVICES OHIO, INC.
By: By:
------------------------------ ------------------------------
Name: Name:
Title: Title:
14
SCHEDULE A
TO THE FUND ACCOUNTING AGREEMENT BETWEEN
TAMARACK FUNDS TRUST AND
BISYS FUND SERVICES OHIO, INC.
FUNDS
(NON-MONEY MARKET FUNDS)
Tamarack Large Cap Equity Fund
Tamarack Mid Cap Equity Fund
Tamarack Small Cap Equity Fund
Tamarack Government Income Fund
Tamarack Quality Income Fund
Tamarack Enterprise Fund
Tamarack Enterprise Small Cap Fund
Tamarack Microcap Value Fund
Tamarack Value Fund
Tamarack Tax-Free Income Fund
Tamarack Small Cap International Fund
(MONEY MARKET FUNDS)
Tamarack Prime Money Market Fund
Tamarack U.S. Government Money Market Fund
Tamarack Tax-Free Money Market Fund
Tamarack Institutional Prime Money Market Fund
Tamarack Institutional Tax-Free Money Market Fund
15
SCHEDULE B
TO THE FUND ACCOUNTING AGREEMENT BETWEEN
TAMARACK FUNDS TRUST AND
BISYS FUND SERVICES OHIO, INC.
FEES
Non-Money Market Funds
On incremental net assets of: Basis points
----------------------------- ------------
$0 - $2 billion 6.975
>$2 - $2.5 billion 6.0
>$2.5 - $3 billion 5.25
>$3 billion 3.75
Money Market Funds
On incremental net assets of: Basis points
----------------------------- ------------
$0 - $8 billion 0.15
>$8 billion 0.1
Each Annual Fee set forth above is computed daily at the annual rate set forth
above. Net assets shall be aggregated across all relevant Funds (Non-Money
Market Funds or Money Market Funds) to determine a total fee for all such Funds,
and each such Fund shall be charged its pro rata share of the applicable fee
based on the ratio of its net assets to the aggregate net assets of all such
Funds. For purposes of determining the fees, the value of each Fund's net assets
shall be computed in the manner described in Tamarack's Declaration of Trust or
offering documents (i.e., Prospectus or Statement of Additional Information) as
from time to time in effect for the computation of the value of such net assets
in connection with the purchase and redemption of shares.
The Fund Accounting Fees, when combined with fees paid to BISYS pursuant to the
Transfer Agency Agreement between the Trust and BISYS, and the
Sub-Administration Agreement between Voyageur Asset Management, Inc. and BISYS
are subject to an aggregate minimum of $45,500 times the total number of Funds
subject to any of those Agreements.
16
