Exhibit 23(h)(3)(B)
TRANSFER AGENCY 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 corporation having its principal
place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust desires that BISYS perform transfer agency services
for the Trust and those investment portfolios of the Trust listed on Schedule A
hereto or as hereafter may be agreed in writing between the parties 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 Trust wish to enter into an Agreement in order to
set forth the terms under which BISYS will perform the transfer agency 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
BISYS shall perform for the Trust the transfer agent services set forth
in Schedule B hereto and with respect only to omnibus positions held by the
Trust's distributor, RBC Xxxx Xxxxxxxx Inc., as nominee. BISYS also agrees to
perform for the Trust such special services incidental to the performance of the
services enumerated herein as agreed to by the parties from time to time. BISYS
shall perform such additional services as are provided on an amendment to
Schedule B hereof, in consideration of such fees as the parties hereto may
agree. The services shall be performed only for the Funds listed on Schedule A,
and BISYS shall have no obligation with regard to any other investment portfolio
of the Trust unless both parties otherwise agree in writing.
BISYS may, at its expense and with prior written consent of the Trust,
subcontract with any entity or person concerning the provision of transfer
agency services contemplated hereunder (individually, a "Sub-Transfer Agent") to
carry out some or all of its responsibilities as transfer agent under this
Agreement at the expense of BISYS with respect to a Fund; provided, however,
that the Sub-Transfer Agent shall be the agent of BISYS and not the agent of the
Trust or such Fund, and that BISYS shall be fully responsible for the acts of
such Sub-Transfer Agent and shall not be relieved of any of its responsibilities
hereunder by the appointment of such Sub-Transfer Agent.
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2. Fees
The Trust shall pay BISYS for the services to be provided by BISYS
under this Agreement in accordance with, and in the manner set forth in,
Schedule C hereto. Fees for any additional services to be provided by BISYS
pursuant to an amendment to Schedule B hereto shall be subject to mutual
agreement of BISYS and the Trust at the time such amendment to Schedule B is
proposed.
3. Reimbursement of Expenses and Miscellaneous Service Fees
(a) In addition to paying BISYS the fees set forth in Schedule C, the
Trust agrees to reimburse BISYS for BISYS's 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 and in
delivering all materials to shareholders;
(ii) All direct telephone, telephone transmission and telecopy or
other electronic transmission expenses incurred by BISYS in
communication with the Funds, the Funds' investment advisers
or custodians, dealers, shareholders or others as required for
BISYS to perform the services to be provided hereunder;
(iii) Sales taxes paid on behalf of the Funds;
(iv) The cost of microfilm or microfiche or other electronic
retention of records or other materials;
(v) Courier (delivery expenses);
(vi) Check processing fees;
(vii) Records retention / storage fees;
(viii) Fulfillment;
(ix) XXX custody and other related fees;
(x) NSCC and related costs;
(xi) Sales taxes;
(xii) Costs of statements and confirmations;
(xiii) Costs of tax forms;
(xiv) Costs of all other shareholder correspondence;
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(xv) Post office boxes; and
(xvi) Any expenses BISYS shall incur at the written direction of an
officer of the Trust (other than an officer of the Trust that
is also a BISYS employee) thereunto duly authorized.
(b) In addition, BISYS shall be entitled to receive the following fees:
(i) System development fees, billed at the rate of $150 per hour,
as approved by the Trust, and all systems-related expenses,
agreed in advance, associated with the provision of special
reports and services pursuant to Item 8 of Schedule D attached
hereto;
(ii) Fees for development of custom interfaces, billed at a
mutually agreed upon rate;
(iii) Ad hoc reporting fees, billed at a mutually agreed upon rate;
(iv) Interactive Voice Response System fees, charged according to
BISYS's standard rate schedule, and applicable to the level of
service (e.g., basic, transaction, premium) selected by the
Trust.
4. Effective Date
This Agreement shall become effective as of the date first written
above (the "Effective Date").
5. Term
This Agreement shall continue in effect until May 31, 2006 (the
"Initial Term"). During the Initial Term the 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 or (iii) for "cause," as set forth below, or (iv) with respect to any
Fund (or Class) in the event such Fund (or Class) is terminated by the Board for
reasons of economic viability. After the Initial Term, the 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
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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; (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 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 the Fee Agreement and Section
3 hereof, the amount of all of BISYS's reasonable 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.
6. Standard of Care; Uncontrollable Events; Limitation of Liability
(a) BISYS shall use its 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
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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 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.
7. Legal Advice
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
employed by the Trust 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.
8. Instructions / Certain Procedures, etc.
Whenever BISYS is requested or authorized to take action hereunder
pursuant to instructions from a shareholder, or a properly authorized agent of a
shareholder ("shareholder's agent"), concerning an account in a Fund, BISYS
shall be entitled to rely upon any certificate, letter or other instrument or
communication (including electronic mail), reasonably believed by BISYS to be
genuine and to have been properly made, signed or authorized by an officer or
other authorized agent of the Trust or by the shareholder or shareholder's
agent, as the case may be, and shall be entitled to receive as conclusive proof
of any fact or matter required to be ascertained by it hereunder a certificate
signed by an officer of the Trust or any other person authorized by the Trust's
Board of Trustees (hereafter referred to as the "Board") or by the shareholder
or shareholder's agent, as the case may be.
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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.
The Trust acknowledges receipt of a copy of BISYS's policy related to
the acceptance of trades for prior day processing (the "BISYS As-Of Trading
Policy"). BISYS may amend the BISYS As-of Trading Policy from time to time in
its sole discretion. A copy of any such amendments shall be delivered to the
Trust promptly following such amendments. BISYS may apply the As-Of Trading
Policy whenever applicable, unless BISYS agrees in writing to process trades
according to such other as-of trading policy as may be adopted by the Trust and
furnished to BISYS by the Trust.
The Trust acknowledges and agrees that deviations from BISYS's written
transfer agent compliance procedures may involve a substantial risk of loss. In
the event an authorized representative of the Trust requests that an exception
be made from any written compliance or transfer agency procedures adopted by
BISYS, BISYS may in its sole discretion determine whether to permit such
exception. In the event BISYS determines to permit such exception, the same
shall become effective when set forth in a written instrument executed by an
authorized representative of the Trust (other than an employee of BISYS) and
delivered to BISYS (an "Exception"). An Exception shall be deemed to remain
effective until the relevant instrument expires according to its terms (or if no
expiration date is stated, until BISYS receives written notice from the Trust
that such instrument has been terminated and the Exception is no longer in
effect). Notwithstanding any provision in this Agreement that expressly or by
implication provides to the contrary, as long as BISYS acts in good faith and
without gross negligence, BISYS shall have no liability for any loss, liability,
expenses or damages to the Trust resulting from the Exception, and the Trust
shall indemnify BISYS and hold BISYS harmless from any loss, liability, expenses
(including reasonable attorneys fees) and damages resulting to BISYS therefrom.
9. Indemnification
The Trust agrees to indemnify and hold harmless BISYS, 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 of every nature and character (collectively, "Losses") arising out of
or in any way relating to 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, fund accountant 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.
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Subject to Section 6(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 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.
10. Record Retention and Confidentiality
BISYS shall keep and maintain on behalf of the Trust all books and
records relating to the Funds 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 Investment Company
Act of 1940, as amended (the "1940 Act"), relating to the maintenance of books
and records in connection with the services to be provided hereunder. BISYS
further agrees that all such books and records shall be the property of the
Trust and to make such books and records available for inspection by the Trust,
any agent or person designated by the Trust or by the Securities and Exchange
Commission (the "Commission") or any other regulatory agency having authority
over the Trust at reasonable times. BISYS shall otherwise keep confidential all
books and records relating to the Trust and its
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shareholders, except when (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
a shareholder or shareholder's agent with respect to information concerning an
account as to which such shareholder has either a legal or beneficial interest
or when requested by the Trust or the dealer of record as to such account. 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. The provisions of this Section 10 are subject to the provisions of
Section 22.
11. 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 at such times as are prescribed in Schedule D attached hereto, or
as subsequently agreed upon by the parties pursuant to an amendment to Schedule
D. The Trust agrees to examine each such report or copy within twenty (20) days
and will report or cause to be reported any errors or discrepancies therein.
12. 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.
13. 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 shall be retained by BISYS for six years from the year of creation. At
the end of such six-year period, such records and documents shall be turned over
to the Trust unless the Trust authorizes in writing the destruction of such
records and documents.
14. Bank Accounts
BISYS is hereby granted such power and authority with the consent of
Trust as may be necessary to establish one or more bank accounts for the Trust
with such bank or banks as are selected or approved by the Trust, as may be
necessary or appropriate from time to time in connection with the services
required to be performed hereunder. The Trust shall be deemed to be the customer
of such Bank or Banks for all purposes in
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connection with such accounts. To the extent that the performance of such
services hereunder shall require BISYS to disburse amounts from such accounts in
payment of dividends, redemption proceeds or for other purposes hereunder, the
Trust shall provide such bank or banks with all instructions and authorizations
necessary for BISYS to effect such disbursements.
15. Representations and Warranties of the Trust
The Trust represents and warrants to BISYS that: (a) as of the close of
business on the Effective Date, each Fund which is in existence as of the
Effective Date has authorized unlimited shares, (b) by virtue of its Articles of
Incorporation or Declaration of Trust, shares of each Fund which are redeemed by
the Trust may be sold by the Trust from its treasury, and (c) 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, (c) it is a
corporation duly organized and existing in good standing under the laws of the
jurisdiction of its formation and qualified to do business in any jurisdiction
where its activities so require.
16. Representations and Warranties of BISYS
BISYS represents and warrants that: (a) BISYS has been in, and shall
continue to be in compliance in all material respects with all provisions of
law, including Section 17A(c) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), required in connection with the performance of its duties
under this Agreement; (b) the various procedures and systems which BISYS has
implemented with regard to safekeeping from loss or damage attributable to fire,
theft or any other cause of the blank checks, 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; and (c) 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
right and remedies of creditors and secured parties (e) it is a corporation duly
organized and existing and in good standing under the laws of the State of Ohio,
and (f) in accordance with Section 6(b) it has in place will continue to
maintain and update as necessary a reasonable disaster recovery program designed
to minimize disruptions in the services contemplated under this Agreement.
17. 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
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shall notify the Trust should its insurance coverage with respect to
professional liability or errors and omissions coverage be canceled or
materially reduced. Such notification shall include the date of cancellation and
the reasons therefore. BISYS shall notify the Trust of any material claims
against it, whether or not they may be covered by insurance, with respect to
services performed under this Agreement and shall notify the Trust should the
total outstanding claims made by BISYS under its insurance coverage materially
impair, or threaten to impair, the adequacy of its coverage.
18. Information to be Furnished by the Trust and Funds
The Trust has furnished to BISYS the following, as amended and current
as of the Effective Date:
(a) A copy of the Trust's Articles of Incorporation or Declaration of
Trust and of any amendments thereto, certified by the proper official of the
state in which such document has been filed.
(b) A copy of the Trust's Bylaws and any amendments thereto;
(c) Certified copies of resolutions of the Board covering the following
matters:
(i) Approval of this Agreement and authorization of a specified
officer of the Trust to execute and deliver this Agreement and
authorization for specified officers of the Trust to instruct
BISYS hereunder; and
(ii) Authorization of BISYS to act as Transfer Agent for the Trust.
(d) 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 (except as otherwise provided
herein to the contrary) shall be authorized to instruct BISYS in all matters.
(e) Two copies of the following (if such documents are employed by the
Trust):
(i) Prospectuses and Statement of Additional Information;
(ii) Distribution Agreement; and
(iii) All other forms commonly used by the Trust or its Distributor
with regard to their relationships and transactions with
shareholders of the Funds.
(f) A certificate as to shares of beneficial interest of the Trust
authorized, issued, and outstanding as of the Effective Date and as to receipt
of full consideration by the Trust for all shares outstanding, such statement to
be certified by the Treasurer of the Trust.
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19. 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 Transfer Agent for the Trust.
(c) The BISYS "As-of" Trading Policy
(d) The most recent independent accountants' report filed with the SEC
pursuant to Rule 17Ad-13 under the Securities Exchange Act relating to BISYS's
system of internal accounting control and related procedures.
20. Amendments to Documents
The Trust shall furnish BISYS written copies of any amendments to, or
changes in, any of the items referred to in Section 18 hereof forthwith upon
such amendments or changes becoming effective. In addition, the Trust agrees
that no amendments will be made to the Prospectuses or Statement of Additional
Information of the Trust which might have the effect of changing the procedures
employed by BISYS in providing the services agreed to hereunder or which
amendment might affect the duties of BISYS hereunder unless the Trust provides
BISYS with written notification of such changes or amendments, provided that
BISYS shall be under no duty to comply with any such changes or amendments that
impose materially different or additional duties upon BISYS or require material
changes to BISYS practices and procedures unless BISYS has expressly consented
thereto.
21. Reliance on Amendments
Subject to Section 20, BISYS may rely on any amendments to or changes
in any of the documents and other items to be provided by the Trust pursuant to
Sections 18 and 20 of this Agreement and, subject to the provisions of Section 6
hereof, the Trust hereby indemnifies and holds harmless BISYS from and against
any and all claims, demands, actions, suits, judgments, liabilities, losses,
damages, costs, charges, counsel fees and other expenses of every nature and
character which may result from actions or omissions on the part of BISYS in
reasonable reliance upon such amendments and/or changes.
22. Compliance with Laws
Except for the obligations of BISYS set forth in Section 10 hereof, 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 "1933
Act"), the 1940 Act, applicable anti-money laundering laws and regulations, 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. The Trust represents
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and warrants that all shares of the Trust that are offered to the public are
covered by an effective registration statement under the 1933 Act and the 1940
Act.
23. 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 c/o Voyageur Asset Management,
Inc. 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, XX 00000 Attn: Xxxxxxxx
Xxxxxxx, copy to Legal Department; 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.
24. Assignment
This Agreement and the rights and duties hereunder shall not be
assignable by either of the parties hereto except by the specific written
consent of the other party. This Section 24 shall not limit or in any way affect
BISYS's right to appoint a Sub-Transfer Agent pursuant to Section 1 hereof. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
25. 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.
26. 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 and interests. It is understood that directors, trustees,
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.
27. 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 by BISYS in the course of performing its duties as
transfer agent, 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 except at the direction of the Trust or
as required or permitted by law. BISYS represents, warrants
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and agrees that it has in place and will 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.
28. 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 of the Trust 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 sections 6, 9, 10, 13, 23, 25, 27 and 28(e) and
28(f) shall survive termination of this Agreement.
* * * * *
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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
By:
----------------------------------
Name:
Title:
BISYS FUND SERVICES OHIO, INC.
By:
----------------------------------
Name:
Title:
14
SCHEDULE A
TO THE TRANSFER AGENCY AGREEMENT BETWEEN
TAMARACK FUNDS TRUST AND
BISYS FUND SERVICES OHIO, INC.
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 TRANSFER AGENCY AGREEMENT BETWEEN
TAMARACK FUNDS TRUST AND
BISYS FUND SERVICES OHIO, INC.
TRANSFER AGENCY SERVICES
1. Shareholder Transactions
(a) Process shareholder purchase and redemption orders.
(b) Set up account information, including address, dividend
option, taxpayer identification numbers and wire instructions.
(c) Issue periodic statements for shareholders.
(d) Process transfers and exchanges.
(e) Process dividend payments, including the purchase of new
shares, through dividend reimbursement.
(f) Mail duplicate confirmation to dealers and other financial
institutions ("Service Organization") of their client's
activity and provide detail for underwriter or Service
Organization confirmations and other Service Organization
shareholder accounting, in accordance with such procedures as
may be agreed upon between Trust and BISYS.
2. Shareholder Information Services
(a) Make information available to shareholder servicing unit and
other remote access units regarding trade date, share price,
current holdings, yields, and dividend information.
(b) Produce detailed history of transactions through duplicate or
special order statements upon request.
3. Compliance Reporting
(c) Prepare and distribute appropriate Internal Revenue Service
forms for corresponding Fund and shareholder income and
capital gains.
(d) Issue tax withholding reports to the Internal Revenue Service
4. Shareholder Account Maintenance
(a) Maintain all shareholder records for each account in the
Trust.
16
(b) Issue customer statements on scheduled cycle, providing
duplicate second and third party copies if required.
(c) Record shareholder account information changes.
(d) Maintain account documentation files for each shareholder.
5. Shareholder Servicing
(a) Staff toll-free telephone lines from 9 a.m. to 5 p.m. EST.
(b) Answer general questions related to investments in the Trust.
17
SCHEDULE C
TO THE TRANSFER AGENCY AGREEMENT BETWEEN
TAMARACK FUNDS TRUST AND
BISYS FUND SERVICES OHIO, INC.
FEES
Annual Fee: 0.05 basis points of the net assets of the Funds
Shareholder Servicing: $1,000 per month
The Annual Fee set forth above is computed daily at the annual rate set forth
above. Net assets shall be aggregated across all Funds to determine a total fee
for all Funds, and each 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 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 Transfer Agency Fees, when combined with fees paid to BISYS pursuant to the
Fund Accounting 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.
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SCHEDULE D
TO THE TRANSFER AGENCY AGREEMENT BETWEEN
TAMARACK FUNDS TRUST AND
BISYS FUND SERVICES OHIO, INC.
REPORTS
1. Daily Shareholder Activity Journal
2. Daily Fund Activity Summary Report
(a) Beginning Balance
(b) Transactions
(c) Shareholder Transactions
(d) Reinvested Dividends
(e) Exchanges
(f) Adjustments
(g) Ending Balance
3. Daily Wire and Check Registers
4. Monthly Dealer Processing Reports
5. Monthly Dividend Reports
6. Sales Data Reports for Blue Sky Registration
7. A copy of the most recent report by independent public accountants
describing control structure policies and procedures relating to transfer
agency operations pursuant to AICPA Statement on Auditing Standards Number
70.
8. Such special reports and additional information that the parties may agree
upon, from time to time.
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