EXHIBIT 99(h)(4)(E)
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
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THIS AGREEMENT is made as of October 5, 2007 by and between PFPC Inc.,
a Massachusetts corporation ("PFPC"), and TAMARACK FUNDS TRUST, a Delaware
business trust (the "Fund").
W I T N E S S E T H :
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Fund wishes to retain PFPC to provide administration and
accounting services to its investment portfolios listed on Exhibit A attached
hereto and made a part hereof, as such Exhibit A may be amended from time to
time (each a "Portfolio"), and PFPC wishes to furnish such services;
WHEREAS, the Fund is separately retaining Voyageur Asset Management
Inc. ("Voyageur"), who serves as investment advisor to the Fund, as an
administrator to the Fund;
WHEREAS, Voyageur is not a party to this Agreement; and,
WHEREAS, Voyageur and PFPC, while maintaining no contractual
relationship to one another, and having been separately engaged by the Fund, may
be referred to by the Fund in the fund prospectus or elsewhere as
"Co-Administrators" (with either Voyageur or PFPC being referred to as a
"Co-Administrator").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and intending to be legally bound hereby the parties
hereto agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
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(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(c) "Authorized Person" means any officer of the Fund and any
other person duly authorized by the Fund's Board of Trustees
to give Oral Instructions or Written Instructions on behalf of
the Fund. An Authorized Person's scope of authority may be
limited by setting forth such limitation in a written document
signed by both parties hereto.
(d) "Fund Counsel" means the legal counsel designated as fund
counsel by the Fund's Board of Trustees.
(e) "Oral Instructions" mean oral instructions received by PFPC
from an Authorized Person or from a person reasonably believed
by PFPC to be an Authorized Person. PFPC may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via
electronic mail as Oral Instructions.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" mean the 1933 Act, the 1934 Act and the 1940
Act.
(h) "Shares" mean the shares of beneficial interest of any series
or class of the Fund.
(i) "Written Instructions" mean (i) written instructions signed by
an Authorized Person (or a person reasonably believed by PFPC
to be an Authorized Person) and received by PFPC or (ii) trade
instructions transmitted (and received by PFPC) by means of an
electronic transaction reporting system access to which
requires use of a password or other authorized identifier. The
instructions may be delivered electronically (with respect to
sub-item (ii) above) or by hand, mail, tested telegram, cable,
telex or facsimile sending device.
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2. APPOINTMENT. The Fund hereby appoints PFPC to provide administration
and accounting services to each of the Portfolios, in accordance with
the terms set forth in this Agreement. PFPC accepts such appointment
and agrees to furnish such services. PFPC shall be under no duty to
take any action hereunder on behalf of the Fund or any Portfolio except
as specifically set forth herein or as may be specifically agreed to by
PFPC and the Fund in a written amendment hereto. PFPC shall not bear,
or otherwise be responsible for, any fees, costs or expenses charged by
any third party service providers engaged by the Fund or by any other
third party service provider to the Fund.
3. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person
pursuant to this Agreement. PFPC may assume that any Oral
Instruction or Written Instruction received hereunder is not
in any way inconsistent with the provisions of organizational
documents or this Agreement or of any vote, resolution or
proceeding of the Fund's Board of Trustees or of the Fund's
shareholders, unless and until PFPC receives Written
Instructions to the contrary.
(c) The Fund agrees to use its best efforts to forward to PFPC
Written Instructions confirming Oral Instructions (except
where such Oral Instructions are given by PFPC or its
affiliates) so that PFPC receives the Written Instructions by
the close of business on the same day that such Oral
Instructions are received. The fact that such confirming
Written Instructions are not received by PFPC or differ from
the Oral Instructions shall in no way invalidate the
transactions or enforceability of the transactions authorized
by the Oral Instructions or PFPC's ability to rely upon such
Oral Instructions.
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4. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PFPC is in doubt as to any action it
should or should not take, PFPC may request directions or
advice, including Oral Instructions or Written Instructions,
from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any
question of law pertaining to any action it should or should
not take relating to the Fund, PFPC may, upon prior written
notice to and after receiving written approval from, the Fund
request advice from Fund Counsel at the expense of the Fund;
provided that PFPC may utilize Fund Counsel in connection with
its performance of Regulatory Administration services upon
providing prior notice to the Fund. Nothing herein shall limit
the right of PFPC to consult with legal counsel of its
choosing and at its own expense.
(c) Conflicting Advice. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC receives from the Fund and the advice PFPC
receives from counsel, PFPC may rely upon and follow the
advice of counsel, provided that reasonable prior written
notice has been given to the Fund to the extent such notice is
practical under the circumstances.
(d) No Obligation to Seek Advice. Nothing in this section shall be
construed so as to impose an obligation upon PFPC (i) to seek
such directions or advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such
directions or advice or Oral Instructions or Written
Instructions.
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5. RECORDS; VISITS.
(a) The books and records pertaining to the Fund and the
Portfolios which are in the possession or under the control of
PFPC shall be the property of the Fund. Such books and records
shall be prepared and maintained as required by the 1940 Act
and other applicable securities laws, rules and regulations.
The Fund and Authorized Persons shall have access to such
books and records at all times during PFPC's normal business
hours. Upon the reasonable request of the Fund, copies of any
such books and records shall be promptly provided by PFPC to
the Fund or to an Authorized Person, at the Fund's expense.
(b) PFPC shall keep the following records:
(i) all books and records with respect to each
Portfolio's books of account;
(ii) records of each Portfolio's securities transactions;
and
(iii) all other books and records as PFPC is required to
maintain pursuant to Rule 31a-1 of the 1940 Act in
connection with the services provided hereunder.
6. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information
that is competitively sensitive material, and not generally known to
the public, including, but not limited to, information about
investments, investment strategies, investment research, research and
portfolio management methodologies, product plans, marketing
strategies, finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and
internal performance results relating to the past, present or future
business activities of the Fund or PFPC, their respective subsidiaries
and affiliated companies; (b) any scientific or technical information,
design, process, procedure, formula, or improvement that is
commercially valuable and secret in the sense that its confidentiality
affords the Fund or PFPC a competitive advantage over its competitors;
(c) all confidential or proprietary concepts, documentation, reports,
data, specifications, computer software, source code, object code,
flow charts, databases, inventions, know-how, and trade secrets,
whether or not patentable or copyrightable; and (d) anything
designated as confidential. Notwithstanding the foregoing, information
shall not be Confidential Information and shall not be subject to such
confidentiality obligations if it: (a) is already known to the
receiving party at the time it is obtained; (b) is or becomes publicly
known or available through no wrongful act of the receiving party; (c)
is rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of confidentiality;
(d) is released by the protected party to a third party without
restriction; (e) is requested or required to be disclosed by the
receiving party pursuant to a court order, subpoena, governmental or
regulatory agency request or law; (f) is relevant to the defense of
any claim or cause of action asserted against the receiving party; (g)
is Fund information provided by PFPC in connection with an independent
third party compliance or other review; (h) is necessary or desirable
for PFPC to release such information in connection with the provision
of services under this Agreement; or (h) has been or is independently
developed or obtained by the receiving party. The provisions of this
Section 6 shall survive termination of this Agreement for a period of
three (3) years after such termination.
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7. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the Fund's
independent public accountants and shall provide account analyses,
fiscal year summaries, and other audit-related schedules with respect
to each Portfolio. PFPC shall take all reasonable action in the
performance of its duties under this Agreement to assure that the
necessary information is made available to such accountants for the
expression of their opinion, as required by the Fund.
8. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC in connection with the services provided by PFPC to
the Fund.
9. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment
to the extent appropriate equipment is available. PFPC shall maintain
emergency data recovery policies and procedures (a "Disaster Recovery
Plan"), which are commercially reasonable in light of the services to
be provided. In the event of equipment failures, PFPC shall, at no
additional expense to the Fund, take reasonable steps to minimize
service interruptions. PFPC shall have no liability with respect to
the loss of data or service interruptions caused by equipment failure,
provided such loss or interruption is not caused by PFPC's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties
or obligations under this Agreement.
10. COMPENSATION.
(a) As compensation for services rendered by PFPC during the
term of this Agreement, the Fund, on behalf of each
Portfolio, will pay to PFPC a fee or fees as may be agreed
to in writing by the Fund and PFPC.
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(b) The undersigned hereby represents and warrants to PFPC that
(i) the terms of this Agreement, (ii) the fees and expenses
associated with this Agreement, and (iii) any benefits
accruing to PFPC or to the adviser or sponsor to the Fund in
connection with this Agreement, including but not limited to
any fee waivers, conversion cost reimbursements, up front
payments, signing payments or periodic payments made or to
be made by PFPC to such adviser or sponsor or any affiliate
of the Fund relating to this Agreement have been fully
disclosed to the Board of Trustees of the Fund and that, if
required by applicable law, such Board of Trustees has
approved or will approve the terms of this Agreement, any
such fees and expenses, and any such benefits.
(c) Notwithstanding the limitation of liability provisions of
this Agreement or the termination of this Agreement, the
Fund shall remain responsible for paying to PFPC the fees
set forth in the applicable fee letter.
11. STANDARD OF CARE/LIMITATION OF LIABILITY.
(a) Subject to the terms of this Section 11, PFPC shall be
liable to the Fund (or any person or entity claiming through
the Fund) for damages only to the extent caused by PFPC's
own willful misfeasance, bad faith, negligence or reckless
disregard of its duties under this Agreement ("Standard of
Care").
(b) Provided that PFPC follows the applicable procedures in its
Disaster Recovery Plan, PFPC shall not be liable for damages
(including without limitation damages caused by delays,
failure, errors, interruption or loss of data) occurring
directly or indirectly by reason of circumstances beyond its
reasonable control, including without limitation the
following events: acts of God; action or inaction of civil
or military authority; national emergencies; public enemy;
war; terrorism; riot; fire; flood; catastrophe; sabotage;
epidemics; civil commotion; interruption, loss or
malfunction of utilities, transportation, computer or
communications capabilities; insurrection; elements of
nature; non-performance by a third party unless such third
party was otherwise retained by PFPC to provide services
under the terms of this Agreement; failure of the mails; or
functions or malfunctions of the internet, firewalls,
encryption systems or security devices caused by any of the
above.
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(c) PFPC shall not be under any duty or obligation to inquire
into and shall not be liable for the validity or invalidity,
authority or lack thereof, or truthfulness or accuracy or
lack thereof, of any instruction, direction, notice,
instrument or other information which PFPC reasonably
believes to be genuine. PFPC shall not be liable for any
damages that are caused by actions or omissions taken by
PFPC in accordance with Written Instructions or advice of
counsel. PFPC shall not be liable for any damages arising
out of any action or omission to act by any prior service
provider of the Fund or for any failure to discover any such
error or omission.
(d) Neither PFPC nor its affiliates shall be liable for any
consequential, incidental, exemplary, punitive, special or
indirect damages, whether or not the likelihood of such
damages was known by PFPC or its affiliates.
(e) No party may assert a cause of action against PFPC or any of
its affiliates more than 16 months after signing of the
audit opinion of the Fund for the financial year during
which the Fund has knowledge that a basis for such cause of
action might exist. The phrase "the Fund has knowledge"
means the actual knowledge of fact or law forming the basis
for a cause of action hereunder by an officer of the Fund
who is not an "affiliated person" of PFPC (as defined in the
Investment Company Act of 1940, as amended). Nothing herein
shall be construed to limit or waive any right any person
may have under the federal securities laws.
(f) Notwithstanding the forgoing sentence, each party shall have
a duty to mitigate damages for which the other party may
become responsible.
(g) This Section 11 shall survive termination of this Agreement.
12. INDEMNIFICATION.
(a) Absent PFPC's failure to meet its Standard of Care (defined
in Section 11 above), the Fund agrees to indemnify, defend
and hold harmless PFPC and its affiliates and their respective
directors, trustees, officers, agents and employees from all
claims, suits, actions, damages, losses, liabilities,
obligations, costs and reasonable expenses (including
attorneys' fees and court costs, travel costs and other
reasonable out-of-pocket costs related to dispute resolution)
arising directly or indirectly from: (a) any action or
omission to act by any prior service provider of the Fund; and
(b) any action taken or omitted to be taken by PFPC in
connection with the provision of services to the Fund.
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(b) If PFPC fails to meet its Standard of Care (defined in
Section 11 above), PFPC agrees to indemnify, defend and hold
harmless the Fund and its affiliates and their respective
directors, trustees, officers, agents and employees from any
claims, suits, actions, damages, losses, liabilities,
obligations, costs and reasonable expenses (including
attorneys' fees and court costs, travel costs and other
reasonable out-of-pocket costs related to dispute resolution)
to the extent arising directly out of any action taken or
omitted to be taken by PFPC in connection with the provision
of services to the Fund.
(c) Legal Action Against Indemnification Party.
(i) Notice of the Action. A party that seeks
indemnification under this Agreement must promptly
give the other party notice of any legal action. But
a delay in notice does not relieve an indemnifying
party of any liability to an indemnified party,
except to the extent the indemnifying party shows
that the delay prejudiced the defense of the action.
(ii) Participating in or Assuming the Defense. The
indemnifying party may participate in the defense at
any time or it may assume the defense by giving
notice to the other party. After assuming the
defense, the indemnifying party:
(1) must select an attorney that is satisfactory to
the other party;
(2) is not liable to the other party for any later
attorney's fees or for any other later expenses
that the other party incurs, except for
reasonable investigation costs;
(3) must not compromise or settle the action without
the other party's consent (but the other party
must not unreasonably withhold its consent); and
(4) is not liable for any compromise or settlement
made without its consent.
(iii) Failing to Assume the Defense. If the indemnifying
party fails to participate in or assume the defense
within 15 days after receiving notice of the action,
the indemnifying party is bound by any determination
made in the action or by any compromise or settlement
made by the other party.
(d) This Section 12 shall survive termination of this Agreement.
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13. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following accounting services with respect to
each Portfolio:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from
the investment adviser for a Portfolio (the "Adviser");
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash, daily trade activity, and investment balances
of the Fund with the Custodian, and provide the Adviser with
the beginning cash balance available for investment purposes;
(vi) Update the cash availability throughout the day as required by
the Adviser;
(vii) Post to and prepare the Statement of Assets and Liabilities
and the Statement of Operations;
(viii) Calculate various contractual expenses (e.g., advisory and
custody fees);
(ix) Monitor the expense accruals and notify an officer of the Fund
of any proposed adjustments;
(x) Control all disbursements and authorize such disbursements
upon Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from independent pricing
services approved by the Adviser, or if such quotes are
unavailable, then obtain such prices from the Adviser, and in
either case calculate the market value of each Portfolio's
investments;
(xiv) Update fund accounting system to reflect rate changes on
variable interest rate instruments;
(xv) Transmit or mail a copy of the daily portfolio valuation to
the Adviser;
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(xvi) Compute net asset value ("NAV") and daily dividends in
accordance with procedures established by the Fund; calculate
daily distributions of income and related factors; disseminate
NAV and related data to the Fund transfer agent, NASDAQ, and
to statistical reporting agencies;
(xvii) As appropriate, compute yields, daily dividend factor, total
return, expense ratios, portfolio turnover rate, and, if
required, portfolio average dollar-weighted maturity, provide
after tax returns and agreed upon benchmark comparisons,
website updates and database company feeds;
(xviii) Calculate and report the market pricing of securities in money
market funds and compare to the amortized cost basis;
(xix) Determine unrealized appreciation and depreciation on
securities held in variable net asset value Funds; and
(xx) Provide accounting reports and other accounting information,
as needed, in connection with the Trust's regular annual
audit, and other audits and examinations by regulatory
agencies.
14. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following administration services with respect to
each Portfolio:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Portfolio and Fund
statistical data as requested on an ongoing basis;
(iv) Perform tax services, including but not limited to,
calculating wash sales, excise tax requirements, capital gains
distributions and income distributions on a periodic or as
needed basis; calculating year-end 1099-DIV redesignations,
including QDI, QII, and FTC; preparing and reviewing of
federal, state, and excise tax returns; preparing and
recording ROCSOP entries; and providing support to management
for any fund structure changes;
(v) Provide access to fully automated compliance module for
purposes of monitoring compliance with Sub-chapter M of the
Internal Revenue Code of 1986, as amended, the 1940 Act, and
the Fund's registration statement. Also provide daily and
monthly Rule 2a-7 testing, and agreed upon daily, monthly, or
quarterly reporting summaries;
(vi) Prepare the Fund's annual and semi-annual shareholder reports,
and prepare and coordinate the filing of Forms N-CSR, N-Q and
N-PX (with the Fund providing the voting records in the format
required by PFPC) including creating and controlling
production calendar and coordinating annual audit;
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(vii) Prepare and coordinate the filing of the Fund's annual
Post-Effective Amendment to its Registration Statement;
prepare and coordinate the filing of supplements to the
Registration Statement, prospectus and SAI (not to exceed one
supplement per quarter, of one page or less in length);
prepare and file (or coordinate the filing of) (i) semi-annual
reports on Form N-SAR (ii) Forms 40-17G; and (iii) Notices
pursuant to Rule 24f-2;
(viii) Administratively assist in obtaining the fidelity bond and
directors' and officers'/errors and omissions insurance
policies for the Fund in accordance with the requirements of
Rule 17g-1 and 17d-1(d)(7) under the 1940 Act as such bond and
policies are approved by the Fund's Board of Trustees;
(ix) Draft notices, agendas (with final selection of agenda items
being made by Fund Counsel) and resolutions for quarterly
board meetings;
(x) Coordinate the preparation, assembly and mailing of board
materials for quarterly board meetings, including but not
limited to, coordinating schedule for quarterly board
meetings; requesting and, when received, collating various
board reports, including the reports of the investment
manager, the distributor, the custodian, external auditors and
others, as required;
(xi) Attend quarterly board meetings and draft minutes thereof;
(xii) Provide compliance policies and procedures related to services
provided by PFPC and, if mutually agreed, certain PFPC
affiliates, summary procedures thereof and an annual
certification letter;
(xiii) Maintain a regulatory calendar for the Fund listing various
SEC filing and board approval deadlines;
(xiv) Provide fund performance information including pre- and
post-tax and gross of fees, on a daily basis or any required
frequency; results delivered in electronic format; and
transmit NAV and performance information for automatic
population of client websites;
(xv) Calculate and monitor the payment of dividends and other
distributions to shareholders;
(xvi) Provide periodic updates on recent, relevant regulatory
events;
(xvii) Provide such additional regulatory services upon such terms
and for such fees as the parties hereto may agree in writing;
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(xviii) Based on PFPC's knowledge of the industry, periodically
consult with the Co-Administrator (on an as-needed basis but
not to exceed four hours per quarter) on the design,
development and operations of the Fund, including new classes,
investment objectives, policies, and structure; and
(xix) Provide support during regulatory examinations, including
providing the Fund with copies of applicable SEC requested
documents that are in PFPC's possession, and assisting the
Fund (in person, if requested) in responding to SEC questions
on applicable documents and matters related to such documents.
Regulatory services performed by PFPC may be subject to the review of
Fund counsel, provided that the services described in subsections
14(xi) (with respect to the drafting of minutes) and 14(vii) will be
subject to the review and approval of Fund Counsel.
15. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written
above and unless terminated pursuant to its terms shall
continue for a period of three (3) years (the "Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement
shall automatically renew for successive terms of one (1)
year ("Renewal Term") each, unless the Fund or PFPC provides
written notice to the other of its intent not to renew. Such
notice must be received not less than ninety (90) days prior
to the expiration of the Initial Term or the then current
Renewal Term.
(c) In the event the Fund gives notice of termination, all
expenses associated with movement (or duplication) of
records and materials and conversion thereof to a successor
accounting and administration services agent(s) (and any
other service provider(s)), and all trailing expenses
incurred by PFPC, will be borne by the Fund.
(d) If a party hereto is guilty of a material failure to perform
its duties and obligations hereunder (a "Defaulting Party")
the other party (the "Non-Defaulting Party") may give written
notice thereof to the Defaulting Party, and if such material
breach shall not have been remedied within thirty (30) days
after such written notice is given, then the Non-Defaulting
Party may terminate this Agreement without penalty or Early
Termination Fee (as defined below) by giving thirty (30) days
written notice of such termination to the Defaulting Party. In
all cases, termination by the Non-Defaulting Party shall not
constitute a waiver by the Non-Defaulting Party of any other
rights it might have under this Agreement or otherwise against
the Defaulting Party.
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(e) Except as set forth in subsection (f) below, in the event that
the Fund ceases to operate as a registered investment company
under the 1940 Act, the Fund may terminate this Agreement by
providing PFPC with 90 days' written notice of its intent to
cease operations (the "Cease Operations Notice"). PFPC shall
transfer, at the expense of the Fund, any books and records
maintained by PFPC that the Fund is required to keep in
accordance with the 40 Act. If the Fund ceases operations, the
Fund shall pay PFPC an amount equal to all fees and other
amounts through the effective date the Fund ceases operations
(which shall be no less than 90 days from the date of the
Cease Operations Notice), as identified in relevant filings
made by the Fund with the SEC. Exclusive of the above, the
Fund may liquidate or otherwise dissolve individual investment
portfolios listed in Exhibit A in the normal course of its
business upon written notice to PFPC, and the Fund will no
longer be obligated to pay PFPC fees for its services to that
Portfolio as of the official liquidation date of the
portfolio, as identified in relevant filings made by the Fund
with the SEC.
(f) Notwithstanding anything contained in this Agreement to the
contrary, if in connection with a Change in Control the Fund
gives notice to PFPC terminating it as the provider of any of
the services hereunder or if the Fund otherwise terminates
this Agreement before the expiration of the then-current
Initial or Renewal Term ("Early Termination"):
(1) PFPC shall, if requested by the Fund, make a good faith
effort to facilitate a conversion to the Fund's
successor service provider; provided that PFPC does not
guarantee that it will be able to effect a conversion on
the date(s) requested by the Fund.
(2) On or before the effective date of the Early
Termination, the Fund shall pay to PFPC an amount equal
to all fees and other amounts ("Early Termination Fee")
calculated as if PFPC were to provide all services
hereunder until the expiration of the then-current
Initial or Renewal Term. The Early Termination Fee shall
be calculated using the average of the monthly fees and
other amounts due to PFPC under this Agreement during
the last three calendar months before the date of the
notice of Early Termination (or if not given the date it
should have been given).
(3) The Fund expressly acknowledges and agrees that the
Early Termination Fee is not a penalty but reasonable
compensation to PFPC for the termination of services
before the expiration of the then-current Initial or
Renewal Term.
(4) For purposes of Section 15(e), "Change in Control" means
a merger, consolidation, adoption, acquisition, change
in control, re-structuring, or re-organization of or any
other similar occurrence involving the Fund or any
affiliate of the Fund.
(5) If the Fund gives notice of Early Termination after
expiration of the specified notice period to terminate
this Agreement in the ordinary course at the end of the
then-current Initial or Renewal Term, the references
above to "expiration of the then-current Initial or
Renewal Term" shall be deemed to mean "expiration of the
Renewal Term immediately following the then-current
Initial or Renewal Term."
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(6) If any of the Fund's assets serviced by PFPC under this
Agreement are removed from the coverage of this
Agreement ("Removed Assets") and are subsequently
serviced by another service provider (including the Fund
or an affiliate of the Fund): (i) the Fund will be
deemed to have caused an Early Termination with respect
to such Removed Assets as of the day immediately
preceding the first such removal of assets; and, (ii)
at, PFPC's option, either (a) the Fund will also be
deemed to have caused an Early Termination with respect
to all non-Removed Assets as of a date selected by PFPC,
or (b) this Agreement will remain in full force and
effect with respect to all non-Removed Assets.
16. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such
other address as PFPC may inform the Fund in writing); (b) if to the
Fund, at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx
00000, Attention: President (or such other address as the Trust may
inform PFPC in writing) or (c) if to neither of the foregoing, at such
other address as shall have been given by like notice to the sender of
any such notice or other communication by the other party. If notice
is sent by confirming telegram, cable, telex or facsimile sending
device, it shall be deemed to have been given immediately. If notice
is sent by first-class mail, it shall be deemed to have been given
three days after it has been mailed. If notice is sent by messenger,
it shall be deemed to have been given on the day it is delivered.
17. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
18. ASSIGNMENT. PFPC may assign its rights hereunder to any majority-owned
direct or indirect subsidiary of PFPC or of The PNC Financial Services
Group, Inc., provided that PFPC gives the Fund thirty (30) days prior
written notice of such assignment. Except as otherwise described
herein, PFPC may not assign this Agreement without the prior written
consent of the Fund, which will not be unreasonably withheld, delayed
or conditioned.
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
20. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
16
21. MISCELLANEOUS.
(a) Notwithstanding anything in this Agreement to the contrary,
the Fund agrees to notify PFPC of any modifications made to a
Fund's Registration Statement or policies which affect PFPC's
responsibilities under this Agreement provided that, PFPC
shall not be bound by any such modifications which, in either
case, would affect the obligations or responsibilities of PFPC
hereunder if PFPC objects in writing to such modifications
within ten (10) business days' of receipt of such notice.
Unless PFPC timely objects, implementation of any such
modification or change by PFPC shall be deemed to conclusively
establish such acceptance. The scope of services to be
provided by PFPC under this Agreement shall not be increased
as a result of new or revised regulatory or other requirements
that may become applicable with respect to the Fund, unless
the parties hereto expressly agree in writing to any such
increase.
(b) During the term of this Agreement and for one year thereafter,
the Fund shall not (with the exceptions noted in the
immediately succeeding sentence) knowingly solicit or recruit
for employment or hire any of PFPC's employees, and the Fund
shall cause the Fund's sponsor and the Fund's affiliates to
not (with the exceptions noted in the immediately succeeding
sentence) knowingly solicit or recruit for employment or hire
any of PFPC's employees. To "knowingly" solicit, recruit or
hire within the meaning of this provision does not include,
and therefore does not prohibit, solicitation, recruitment or
hiring of a PFPC employee by the Fund, the Fund's sponsor or
an affiliate of the Fund if the PFPC employee was identified
by such entity solely as a result of the PFPC employee's
response to a general advertisement by such entity in a
publication of trade or industry interest or other similar
general solicitation by such entity.
(c) Except as expressly provided in this Agreement, PFPC hereby
disclaims all representations and warranties, express or
implied, made to the Fund or any other person, including,
without limitation, any warranties regarding quality,
suitability, merchantability, fitness for a particular purpose
or otherwise (irrespective of any course of dealing, custom or
usage of trade), of any services or any goods provided
incidental to services provided under this Agreement. PFPC
disclaims any warranty of title or non-infringement except as
otherwise set forth in this Agreement.
(d) This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents
their agreement, if any, with respect to delegated duties. The
captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or
effect. Notwithstanding any provision hereof, the services of
PFPC are not, nor shall they be construed as constituting,
legal advice or the provision of legal services for or on
behalf of the Fund or any other person.
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(e) The Fund will provide such information and documentation as
PFPC may reasonably request in connection with services
provided by PFPC to the Fund.
(f) This Agreement shall be deemed to be a contract made in
Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(g) If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors
and permitted assigns. Except as may be explicitly stated in
this Agreement, (i) this Agreement is not for the benefit of
any other person or entity and (ii) there shall be no third
party beneficiaries hereof.
(h) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such
party.
(i) To help the U.S. government fight the funding of terrorism and
money laundering activities, U.S. Federal law requires each
financial institution to obtain, verify, and record certain
information that identifies each person who initially opens an
account with that financial institution on or after October 1,
2003. Certain of PFPC's affiliates are financial institutions,
and PFPC may, as a matter of policy, request (or may have
already requested) the Fund's name, address and taxpayer
identification number or other government-issued
identification number, and, if such party is a natural person,
that party's date of birth. PFPC may also ask (and may have
already asked) for additional identifying information, and
PFPC may take steps (and may have already taken steps) to
verify the authenticity and accuracy of these data elements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By: /s/ Xxx X. Xxxxxxxx
---------------------------
Name: Xxx X. Xxxxxxxx
Title: Senior Vice President
TAMARACK FUNDS TRUST
By: Xxxx X. Xxxxx
---------------------------
Name: Xxxx X. Xxxxx
Title: President
18
EXHIBIT A
---------
THIS EXHIBIT A, dated as of October 5, 2007 is Exhibit A to that
certain Administration and Accounting Services Agreement dated as of October 5,
2007 between PFPC Inc. and Tamarack Funds Trust.
PORTFOLIOS
----------
Tamarack Enterprise Fund
Tamarack Small Cap Core Fund
Tamarack Institutional Prime Money Market Fund
Tamarack Institutional Tax-Free Money Market Fund
Tamarack Large Cap Growth Fund
Tamarack Mid Cap Growth Fund
Tamarack Microcap Value Fund
Tamarack Prime Money Market Fund
Tamarack Quality Fixed Income Fund
Tamarack XXXX Cap Growth Fund
Tamarack Tax-Free Income Fund
Tamarack Tax-Free Money Market Fund
Tamarack U.S. Government Money Market Fund
Tamarack Value Fund
Tamarack Treasury Plus Money Market Fund
19
