Exhibit 9(c)
TRANSFER AGENCY AND SERVICE AGREEMENT
Between
MERRIMAC MASTER PORTFOLIO
and
IBT FUND SERVICES (IRELAND) LIMITED
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT effective as of the 1st day of November, 1996 by and between
Merrimac Master Portfolio, a corporation organized under the laws of the state
of New York (the "Company"), and IBT Fund Services (Ireland) Limited, an Irish
limited liability company ("IBT").
WHEREAS, the Company desires to appoint IBT as its transfer agent,
dividend disbursing agent and agent in connection with certain other activities,
and IBT desires to accept such appointment;
WHEREAS, IBT is duly registered as a transfer agent as provided in
Section 17A(c) of the Securities Exchange Act of 1934, as amended, (the "1934
Act");
WHEREAS, the Company is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, the Company intends to initially offer shares in one series,
the Merrimac Cash Portfolio, and one class, (such series and class, together
with all other series and classes subsequently established by the Company and
made subject to this Agreement in accordance with Article 17, being herein
referred to as the "Fund(s)");
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the Company and IBT agree as follows:
ARTICLE 1. Terms of Appointment; Duties of IBT
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1.01 Subject to the terms and conditions set forth in this Agreement,
the Company on behalf of the Funds hereby employs and appoints IBT to act, and
IBT agrees to act, as transfer agent for each of the Fund(s)' authorized and
issued shares of beneficial interest ("Shares"), dividend disbursing agent and
agent in connection with any accumulation, open-account or similar plans
provided to the shareholders of the Company ("Shareholders") and set out in the
most recent Confidential Offering Circular, as such may be amended from time to
time, (the "Offering Circular") of the Company, including without limitation any
periodic investment plan or periodic withdrawal program.
1.02 IBT agrees that it will perform the following services:
(a) In connection with procedures established from time to
time by agreement between the Company and IBT, IBT shall:
(i) Receive for acceptance orders for the purchase of
Shares and promptly deliver payment and appropriate documentation therefor to
the custodian of the Company appointed by the Board of Directors of the Company
(the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the appropriate Shareholder account;
(iii) Receive for acceptance redemption requests and
redemption directions and deliver the appropriate documentation therefor to the
Custodian;
(iv) At the appropriate time as and when it receives
monies paid to it by the Custodian with respect to any redemption, pay over or
cause to be paid over in the appropriate manner such monies as instructed by the
redeeming Shareholders;
(v) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and
distributions declared by the Company on behalf of a Fund;
(vii) Create and maintain all necessary records
including those specified in Article 10 hereof, in accordance with all
applicable laws, rules and regulations, including but not limited to records
required by Section 31(a) of the Investment Company Act of 1940, as amended (the
"1940 Act"), and those records pertaining to the various functions performed by
it hereunder. All records shall be available for inspection and use by the
Company. Where applicable, such records shall be maintained by IBT for the
periods and in the places required by Rule 31a-2 under the 1940 Act;
(viii) Make available during regular business hours all
records and other data created and maintained pursuant to this Agreement for
reasonable audit and inspection by the Company, or any person retained by the
Company. Upon reasonable notice by the Company, IBT shall make available during
regular business hours its facilities and premises employed in connection with
its performance of this Agreement for reasonable visitation by the Company, or
any person retained by the Company;
(ix) At the expense of and at the request of the
Company, maintain an adequate supply of blank share certificates for each Fund
providing for the issuance of certificates to meet IBT's requirements therefor.
Such share certificates shall be properly signed by facsimile. The Company
agrees that, notwithstanding the death, resignation, or removal of any officer
of the Company whose signature appears on such certificates, IBT may continue to
countersign certificates which bear such signatures until otherwise directed by
the Company. Share certificates may be issued and accounted for entirely by IBT
and do not require any third party registrar or other endorsing party;
(x) Issue replacement share certificates in lieu of
certificates which have been lost, stolen, mutilated or destroyed, without any
further action by the Board of Directors or any officer of the Company, upon
receipt by IBT of properly executed affidavits and lost certificate bonds, in
form satisfactory to IBT with the Company and IBT as obligees under the bond. At
the discretion of IBT, and at its sole risk, IBT may issue replacement
certificates without requiring the affidavits and lost certificate bonds
described above and the Company agrees to indemnify IBT against any and all
losses or claims which may arise by reason of the issuance of such new
certificates in the place of the ones allegedly lost, stolen or destroyed; and
(xi) Record the issuance of Shares of the Company and
maintain, pursuant to Rule 17Ad-10(e) under the 1934 Act, a record of the total
number of Shares of the Company which are authorized, based upon data provided
to it by the Company, and issued and outstanding. IBT shall also provide the
Company on a regular basis with the total number of Shares which are authorized
and issued and outstanding and shall have no obligation, when recording the
issuance of Shares, to monitor the issuance of such Shares or to take cognizance
of any laws relating to the issue or sale of such Shares, which functions shall
be the sole responsibility of the Company.
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(b) In addition to and not in lieu of the services set forth
in the above paragraph (a) or in any Schedule hereto, IBT shall: (i) perform all
of the customary services of a transfer agent, dividend disbursing agent and, as
relevant, agent in connection with accumulation, open-account or similar plans
(including without limitation any periodic investment plan or periodic
withdrawal program); including but not limited to maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing proxies, receiving and
tabulating proxies, mailing Shareholder reports and offering memoranda to
current Shareholders, withholding taxes on all accounts, including nonresident
alien accounts, preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required with respect to dividends and distributions by
federal authorities for all Shareholders, preparing and mailing confirmation
forms and statements of account to Shareholders for all purchases and
redemptions of Shares and other confirmable transactions in Shareholder
accounts, responding to Shareholder telephone calls and Shareholder
correspondence, preparing and mailing activity statements for Shareholders, and
providing Shareholder account information; and (ii) provide a system which will
enable the Company to monitor the total number of shares sold in each State. The
Company shall (i) identify to IBT in writing those transactions and assets to be
treated as exempt from blue sky reporting for each State and (ii) verify the
establishment of transactions for each State on the system prior to activation
and thereafter monitor the daily activity for each State. The responsibility of
IBT for a Fund's blue sky state registration status is solely limited to the
initial establishment of transactions subject to blue sky compliance by such
Fund(s) and the reporting of such transactions to the Fund(s) as provided above.
(c) Additionally, IBT shall utilize a system to identify all
share transactions which involve purchase and redemption orders that are
processed at a time other than the time of the computation of net asset value
per share next computed after receipt of such orders, and shall compute the net
effect upon the Fund(s) of such transactions so identified on a daily and
cumulative basis.
ARTICLE 2. Sale of Company Shares
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2.01 Whenever the Company shall sell or cause to be sold any Shares of
a Fund, the Company shall deliver or cause to be delivered to IBT a document
duly specifying: (i) the name of the Fund whose Shares were sold; (ii) the
number of Shares sold, trade date, and price; (iii) the amount of money to be
delivered to the Custodian for the sale of such Shares and specifically
allocated to such Fund; and (iv) in the case of a new account, a new account
application or sufficient information to establish an account.
2.02 IBT will, upon receipt by it of a check or other payment
identified by it as an investment in Shares of one of the Funds and drawn or
endorsed to IBT as agent for, or identified as being for the account of, one of
the Funds, promptly deposit such check or other payment to the appropriate
account postings necessary to reflect the investment. IBT will notify the
Company, or its designee, and the Custodian of all purchases and related account
adjustments.
2.03 Under procedures as established by mutual agreement between the
Company and IBT, IBT shall issue to the purchaser or its authorized agent such
Shares, computed to the nearest three decimal points, as he is entitled to
receive, based on the appropriate net asset value of the Funds' Shares,
determined in accordance with the Offering Circular and any applicable federal
law or regulation. In issuing Shares to a purchaser or its authorized agent, IBT
shall be entitled to rely upon the latest directions, if any, previously
received by IBT from the purchaser or its authorized agent concerning the
delivery of such Shares.
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2.04 IBT shall not be required to issue any Shares of the Company where
it has received a written instruction from the Company or written notification
from any appropriate federal or state authority that the sale of the Shares of
the Fund(s) in question has been suspended or discontinued, and IBT shall be
entitled to rely upon such written instructions or written notification.
2.05 Upon the issuance of any Shares of any Fund(s) in accordance with
foregoing provisions of this Section, IBT shall not be responsible for the
payment of any original issue or other taxes, if any, required to be paid by the
Company in connection with such issuance.
2.06 IBT may establish such additional rules and regulations governing
the transfer or registration of Shares as it may deem advisable and consistent
with such rules and regulations generally adopted by transfer agents, or with
the written consent of the Company, any other rules and regulations.
ARTICLE 3. Returned Checks
--------------------------
3.01 In the event that any check or other order for the transfer of
money is returned unpaid for any reason, IBT will take such steps as IBT may, in
its discretion, deem appropriate to protect the Company from financial loss or
as the Company or its designee may instruct. Provided that the standard
procedures, as agreed upon from time to time, between the Company and IBT,
regarding purchases and redemptions of Shares, are adhered to by IBT, IBT shall
not be liable for any loss suffered by a Fund as a result of returned or unpaid
purchase or redemption transactions. Legal or other expenses incurred to collect
amounts owed to a Fund as a consequence of returned or unpaid purchase or
redemption transactions shall be an expense of that Fund.
ARTICLE 4. Redemptions
----------------------
4.01 Shares of any Fund may be redeemed in accordance with the
procedures set forth in the Offering Circular of the Company and IBT will duly
process all redemption requests.
ARTICLE 5. Transfers and Exchanges
----------------------------------
5.01 IBT is authorized to review and process transfers of Shares of
each Fund, exchanges between Funds on the records of the Funds maintained by
IBT, and exchanges between the Company and any other entity as may be permitted
by the Offering Circular of the Company. If Shares to be transferred are
represented by outstanding certificates, IBT will, upon surrender to it of the
certificates in proper form for transfer, and upon cancellation thereof,
countersign and issue new certificates for a like number of Shares and deliver
the same. If the Shares to be transferred are not represented by outstanding
certificates, IBT will, upon an order therefor by or on behalf of the registered
holder thereof in proper form, credit the same to the transferee on its books.
If Shares are to be exchanged for Shares of another Fund, IBT will process such
exchange in the same manner as a redemption and sale of Shares, except that it
may in its discretion waive requirements for information and documentation.
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ARTICLE 6. Right to Seek Assurances
-----------------------------------
6.01 IBT reserves the right to refuse to transfer or redeem Shares
until it is satisfied that the requested transfer or redemption is legally
authorized, and it shall incur no liability for the refusal, in good faith, to
make transfers or redemptions which IBT, in its judgment, deems improper or
unauthorized, or until it is satisfied that there is no basis for any claims
adverse to such transfer or redemption. IBT may, in effecting transfers, rely
upon the provisions of the Uniform Act for the Simplification of Fiduciary
Security Transfers or the Uniform Commercial Code, as the same may be amended
from time to time, which in the opinion of legal counsel for the Company or
IBT's own legal counsel, do not require certain documents in connection with the
transfer or redemption of Shares of any Fund, and the Company shall indemnify
IBT for any act done or omitted by it in reliance upon such laws or opinions of
counsel of the Company or of IBT.
ARTICLE 7. Distributions
------------------------
7.01 The Company will promptly notify IBT of the declaration of any
dividend or distribution. The Company shall furnish to IBT a resolution of the
Board of Directors of the Company certified by the Secretary (a "Certificate"):
(i) authorizing the declaration of dividends on a specified periodic basis and
authorizing IBT to rely on oral instructions or a Certificate specifying the
date of the declaration of such dividend or distribution, the date of payment
thereof, the record date as of which Shareholders entitled to payment shall be
determined and the amount payable per share to Shareholders of record as of such
record date and the total amount payable to IBT on the payment date; or (ii)
setting forth the date of the declaration of any dividend or distribution by a
Fund, the date of payment thereof, the record date as of which Shareholders
entitled to payment shall be determined, and the amount payable per share to the
Shareholders of record as of that date and the total amount payable to IBT on
the payment date.
7.02 IBT, on behalf of the Company, shall instruct the Custodian to
place in a dividend disbursing account funds equal to the cash amount of any
dividend or distribution to be paid out. IBT will calculate, prepare and mail
checks to (at the address as it appears on the records of IBT), or (where
appropriate) credit such dividend or distribution to the account of, Fund
Shareholders, and maintain and safeguard all underlying records.
7.03 IBT will replace lost checks at its discretion and in conformity
with regular business practices.
7.04 IBT will maintain all records necessary to reflect the crediting
of dividends which are reinvested in Shares of the Company, including without
limitation daily dividends.
7.05 IBT shall not be liable for any improper payments made in
accordance with a resolution of the Board of Directors of the Company.
7.06 If IBT shall not receive from the Custodian sufficient cash to
make payment to all Shareholders of the Company as of the record date, IBT
shall, upon notifying the Company, withhold payment to all Shareholders of
record as of the record date until such sufficient cash is provided to IBT and
shall not be liable for any claim arising out of such withholding.
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ARTICLE 8. Other Duties
-----------------------
8.01 In addition to the duties expressly provided for herein, IBT shall
perform such other duties and functions and shall be paid such amounts therefor
as may from time to time be agreed to in writing.
ARTICLE 9. Taxes
----------------
9.01 It is understood that IBT shall file such appropriate information
returns concerning the payment of dividends and capital gain distributions and
tax withholding with the proper Federal, State and local authorities as are
required by law to be filed by the Company and shall withhold such sums as are
required to be withheld by applicable law.
ARTICLE 10. Books and Records
-----------------------------
10.01 IBT shall maintain confidential records showing for each
Shareholder's account the following: (i) names, addresses and tax identification
numbers; (ii) numbers of Shares held; (iii) historical information (as available
from prior transfer agents) regarding the account of each Shareholder, including
dividends paid and date and price of all transactions on a Shareholder's
account; (iv) any stop or restraining order placed against a Shareholder's
account; (v) information with respect to withholdings; (vi) any capital gain or
dividend reinvestment order, plan application, dividend address and
correspondence relating to the current maintenance of a Shareholder's account;
(vii) certificate numbers and denominations for any Shareholders holding
certificates; (viii) any information required in order for IBT to perform the
calculations contemplated or required by this Agreement; and (ix) such other
information and data as may be required by applicable law.
10.02 Any records required to be maintained by Rule 31a-1 under the
1940 Act will be preserved for the periods prescribed in Rule 31a-2 under the
1940 Act. Such records may be inspected by the Company during regular business
hours upon reasonable notice. IBT may, at its option at any time, and shall
forthwith upon the Company's demand, turn over to the Company and cease to
retain in IBT's files, records and documents created and maintained by IBT in
performance of its service or for its protection. At the end of the six-year
retention period, such documents will either be turned over to the Company, or
destroyed in accordance with the Company's authorization.
10.03 Procedures applicable to the services to be performed hereunder
may be established from time to time by agreement between the Fund(s) and IBT.
IBT shall have the right to utilize any shareholder accounting and recordkeeping
systems which, in its opinion, qualifies to perform any services to be performed
hereunder. IBT shall keep records relating to the services performed hereunder,
in the form and manner as it may deem advisable.
ARTICLE 11. Fees and Expenses.
------------------------------
11.01 For performance by IBT pursuant to this Agreement, the Fund(s)
agree to pay IBT an annual maintenance fee for each Shareholder account as set
out in the initial fee schedule attached as Appendix A hereto. Such fees and
out-of-pocket expenses and advances identified under Section 11.02 below may be
changed from time to time subject to mutual written agreement between the
Fund(s) and IBT.
11.02 In addition to the fee paid under Section 11.01 above, the
Fund(s) agree to reimburse IBT for out-of-pocket expenses or advances incurred
by IBT for the items set out in the fee schedule attached
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hereto. In addition, any other expenses incurred by IBT at the request or with
the consent of the Fund(s) including, without limitation, any equipment or
supplies which the Company specifically orders or requires IBT to purchase, will
be reimbursed by the Fund(s).
11.03 The Fund(s) agree to pay all fees and reimbursable expenses
within thirty days following the mailing of the respective billing notice.
Postage for mailing of dividends, proxies, Fund reports and other mailings to
all shareholder accounts shall be advanced to IBT by the Fund(s) at least seven
(7) days prior to the mailing date of such materials. Any waiver or extension by
IBT of the thirty and seven day time periods enumerated in this section 11.03
shall not constitute a dismissal of any monies due under this Agreement nor
shall such waiver or extension apply to any future monies due to IBT hereunder.
ARTICLE 12. Representations and Warranties of IBT
-------------------------------------------------
IBT represents and warrants to the Company that:
12.01 It is a private limited liability company duly organized and
existing and in good standing under the laws of Ireland.
12.02 It is empowered under applicable laws and by its charter and
by-laws to enter into and perform this Agreement.
12.03 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
12.04 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
ARTICLE 13. Representations and Warranties of the Company
---------------------------------------------------------
The Company represents and warrants to IBT that:
13.01 It is a corporation duly organized and existing and in good
standing under the laws of the State of its incorporation as set forth in the
preamble hereto.
13.02 It is empowered under applicable laws and by its charter
documents and by-laws to enter into and perform this Agreement.
13.03 All proceedings required by said charter documents and by-laws
have been taken to authorize it to enter into and perform this Agreement.
13.04 It is a open-end investment company registered under the ▇▇▇▇
▇▇▇.
13.05 Appropriate state securities law filings have been made and will
continue to be made, with respect to all Shares of the Company being offered for
sale.
13.06 When Shares are hereafter issued in accordance with the terms of
the Offering Circular, such Shares shall be validly issued, fully paid and
nonassessable by the Fund(s).
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ARTICLE 14. Indemnification
---------------------------
14.01 Except as set forth in Section 14.02 hereof, IBT shall not be
responsible for, and the Company shall indemnify and hold IBT harmless from and
against, any and all losses, damages, costs, charges, legal fees, payments,
expenses and liability arising out of or attributable to:
(a) All actions taken or omitted to be taken by IBT or its
agents or subcontractors in good faith in reliance on or use by IBT or its
agents or subcontractors of information, records and documents which (i) are
received by IBT or its agents or subcontractors and furnished to such party by
or on behalf of the Fund(s), (ii) have been prepared and/or maintained by the
Fund(s) or any other person or firm on behalf of the Fund(s), or (iii) were
received by IBT or its agents or subcontractors from a prior transfer agent.
(b) Any action taken or omitted to be taken by IBT in good
faith reliance upon any law, act, regulation (a "Regulation") or interpretation
of a Regulation even though such Regulation may thereafter have been altered,
changed, amended or repealed.
(c) The Fund(s)' refusal or failure to comply with the terms
of this Agreement, or which arise out of the Funds' lack of good faith,
negligence or willful misconduct or which arise out of the breach of any
representation or warranty of the Fund(s) hereunder.
(d) The reliance on, or the carrying out by IBT or its agents
or subcontractors of any instructions or requests, whether written or oral, of
the Fund(s).
(e) The offer or sale of Shares by the Company in violation of
(i) any requirement under the federal securities laws or regulations; (ii) any
requirement under the securities laws or regulations of any state; or (iii) any
stop order or other determination or ruling by any federal or state agency with
respect to the offer or sale of such Shares.
14.02 IBT shall indemnify and hold the Fund(s) harmless from and
against any and all losses, damages, costs, charges, legal fees, payments,
expenses and liability arising out of or attributed to any action or failure or
omission to act by IBT as a result of IBT's lack of good faith, negligence,
willful misconduct, knowing violation of law or fraud.
14.03 At any time IBT may apply to any officer of the Company for
instructions, and may consult with legal counsel of IBT or the Company with
respect to any matter arising in connection with the services to be performed by
IBT under this Agreement, and IBT and its agents or subcontractors shall not be
liable and shall be indemnified by the Company for any action taken or omitted
by it in reliance upon such instructions or upon the opinion of such counsel
except for a knowing violation of law. IBT, its agents and subcontractors shall
be protected and indemnified in acting upon any paper or document furnished by
or on behalf of the Fund(s), reasonably believed to be genuine and to have been
signed by the proper person or persons, or upon any instruction, information,
data, records or documents provided to IBT or its agents or subcontractors by
machine readable input, telex, CRT data entry or other similar means authorized
by the Fund(s), and IBT, its agents and subcontractors shall not be held to have
notice of any change of authority of any person, until receipt of written notice
thereof from the Fund(s). IBT, its agents and subcontractors shall also be
protected and indemnified in recognizing stock certificates which are reasonably
believed to bear the proper manual or facsimile signatures of an officer of the
Company, and one proper countersignature of any former transfer agent or
registrar, or of a co-transfer agent or co-registrar.
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14.04 In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, interruption
of electrical power or other utilities, equipment or transmission failure or
damage reasonably beyond its control, or other causes reasonably beyond its
control, such party shall not be liable to the other for any damages resulting
from such failure to perform or otherwise from such causes.
14.05 Neither party to this Agreement shall be liable to the other
party for special, incidental or consequential damages, even if the other party
has been advised of the possibility of such damages, under any provision of this
Agreement or for any act or failure to act hereunder as contemplated by this
Agreement.
14.06 In order that the indemnification provisions contained in this
Article 14 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking the indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
seeking indemnification shall give the indemnifying party full and complete
authority, information and assistance to defend such claim or proceeding, and
the indemnifying party shall have, at its option, sole control of the defense of
such claim or proceeding and all negotiations for its compromise or settlement.
The party seeking indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be required to indemnify it
except with the other party's prior written consent, which consent shall not be
unreasonably withheld.
ARTICLE 15. Covenants of the Company and IBT
--------------------------------------------
15.01 The Company shall promptly furnish to IBT the following:
(a) A certified copy of the resolution of the Directors of the
Company authorizing the appointment of IBT and the execution and delivery of
this Agreement.
(b) A copy of the charter documents and by-laws of the Company
and all amendments thereto.
(c) Copies of each vote of the Directors designating
authorized persons to give instructions to IBT, and a Certificate providing
specimen signatures for such authorized persons.
(d) Certificates as to any change in any officer or Director
of the Company.
(e) If applicable a specimen of the certificate of Shares in
each Fund of the Company in the form approved by the Directors, with a
Certificate as to such approval.
(f) Specimens of all new certificates for Shares, accompanied
by the Directors' resolutions approving such forms.
(g) All account application forms and other documents relating
to shareholder accounts or relating to any plan, program or service offered by
the Company.
(h) A list of all Shareholders of the Fund(s) with the name,
address and tax identification number of each Shareholder, and the number of
Shares of the Fund(s) held by each, certificate numbers and denominations ( if
any certificates have been issued), lists of any account against
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which stops have been placed, together with the reasons for said stops, and the
number of Shares redeemed by the Fund(s).
(i) An opinion of counsel for the Company with respect to the
validity of the Shares and the status of such Shares under the Securities Act of
1933.
(j) Copies of the Fund(s) registration statement on Form N-1A
(if applicable) as amended and declared effective by the Securities and Exchange
Commission and all post-effective amendments thereto.
(k) Such other certificates, documents or opinions as IBT may
deem necessary or appropriate for IBT in the proper performance of its duties
hereunder.
15.02 IBT hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Company for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
15.03 IBT shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the 1940 Act and the Rules thereunder, IBT agrees that
all such records prepared or maintained by IBT relating to the services to be
performed by IBT hereunder are the confidential property of the Company and will
be preserved, maintained and made available in accordance with such Section and
Rules, and will be surrendered to the Company on and in accordance with its
request.
15.04 IBT and the Company agree that all books, records, information
and data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required by law.
15.05 In case of any requests or demands for the inspection of the
Shareholder records of the Company, IBT will endeavor to notify the Company and
to secure instructions from an authorized officer of the Company as to such
request or demand. IBT reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel that it may be
subject to enforcement or other action by any court or regulatory body for the
failure to exhibit the Shareholder records to such person.
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ARTICLE 16. Term of Agreement
-----------------------------
16.01 Termination of Agreement. The term of this Agreement shall be
three years commencing upon the date first above written (the "Initial Term"),
unless earlier terminated as provided herein. After the expiration of the
Initial Term, the term of this Agreement shall automatically renew for
successive one-year terms (each a "Renewal Term") unless notice of non-renewal
is delivered by the non-renewing party to the other party no later than sixty
days prior to the expiration of the Initial Term or any Renewal Term, as the
case may be.
(a) Either party hereto may terminate this Agreement prior to
the expiration of the Initial Term in the event the other party violates any
material provision of this Agreement, provided that the non-violating party
gives written notice of such violation to the violating party and the violating
party does not cure such violation within 90 days of receipt of such notice.
(b) Either party may terminate this Agreement during any
Renewal Term upon sixty days written notice to the other party. Any termination
pursuant to this paragraph 16.01(b) shall be effective upon expiration of such
sixty days, provided, however, that the effective date of such termination may
be postponed to a date not more than ninety days after delivery of the written
notice: (i) at the request of IBT, in order to prepare for the transfer by IBT
of its duties hereunder; or (ii) at the request of the Fund, in order to give
the Fund an opportunity to make suitable arrangements for a successor transfer
agent.
16.02 Should the Company exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the Company. Additionally, IBT reserves the right to recover from
the Company any other reasonable expenses associated with such termination.
ARTICLE 17. Additional Funds
----------------------------
17.01 In the event that the Company establishes one or more series of
Shares in addition to the initial series, or one or more classes in addition to
the initial classes, with respect to which it desires to have IBT render
services as transfer agent under the terms hereof, it shall so notify IBT in
writing, and if IBT agrees in writing to provide such services, such series or
classes of Shares shall become a Fund hereunder.
ARTICLE 18. Assignment
----------------------
18.01 Except as provided in Section 18.03 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
18.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
18.03 IBT, may without further consent on the part of the Company,
subcontract for the performance of any of the services to be provided hereunder
to third parties, including any affiliate of IBT.
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ARTICLE 19. Amendment
---------------------
19.01 This Agreement may be amended or modified only by a written
agreement executed by both parties.
ARTICLE 20. Governing Law
-------------------------
20.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of New York,
without regard to its conflict of laws provisions.
ARTICLE 21. Merger of Agreement and Severability
------------------------------------------------
21.01 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
hereof whether oral or written.
21.02 In the event any provision of this Agreement shall be held
unenforceable or invalid for any reason, the remainder of the Agreement shall
remain in full force and effect.
21.03 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original; but such counterparts shall
together, constitute only one instrument.
ARTICLE 22. Notices
-------------------
22. 01 Any notice or other instrument in writing authorized or required
by this Agreement to be given to either party hereto will be sufficiently given
if addressed to such party and mailed or delivered to it at its office at the
address set forth below:
For the Fund(s): Merrimac Master Portfolio
P.O. Box 501
Cardinal Avenue
Georgetown, Grand Cayman
Cayman Islands, B.W.I.
For IBT: IBT Fund Services (Ireland) Limited
Deloitte & Touche House
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇
General Counsel
Investors Bank & Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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ARTICLE 23. Regarding the Fund
------------------------------
23.01 Limitation of Liability. IBT is hereby expressly put on notice of
the limitation of liability set forth in the Declaration of Trust of the Fund
and agrees that the obligations assumed by the Fund hereunder shall be limited
in all cases to the assets of the Fund and that IBT shall not seek satisfaction
of any such obligation from the officers, agents, employees, trustees, or
shareholders of the Fund.
23.03 Several Obligations of the Portfolios. This Agreement is an
agreement entered into between IBT and the Funds with respect to each Fund. With
respect to any obligation of the Funds on behalf of any Fund arising out of this
Agreement, IBT shall look for payment or satisfaction of such obligation solely
to the assets of the Fund to which such obligation relates as though IBT had
separately contracted with the Funds by separate written instrument with respect
to each Fund.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and the year first above written.
MERRIMAC MASTER PORTFOLIO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name:
Title:
IBT FUND SERVICES (IRELAND) LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President & C.E.O.
14