EXHIBIT-99.B9(b)
TRANSFER AGENCY AND SERVICE AGREEMENT
Between
THE MERRIMAC SERIES
and
INVESTORS BANK & TRUST COMPANY
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT effective as of June 1, 1998 by and between the Merrimac Series, a
corporation organized under the laws of Delaware (the "Company"), and Investors
Bank & Trust Company, a Massachusetts trust 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 three Series, the
Merrimac Cash Series Fund, the Merrimac Treasury Series Fund and the Merrimac
Short-Term Asset Reserve Series, and three classes, the Institutional Class, the
Premium Class and the Investment Class (such classes, 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
-----------------------------------------------
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
Prospectus and Statement of Additional Information, as such may be amended from
time to time, (the "Offering Documents") 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;
2
(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.
3
(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
Propsectuses 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
----------------------------------
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 Documents 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.
4
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 Prospectus 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
Prospectus 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.
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
5
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.
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
6
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 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
7
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 trust company duly organized and existing and in good standing
under the laws of Delaware.
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 0000 Xxx.
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
Prospectus, such Shares shall be validly issued, fully paid and nonassessable by
the Fund(s).
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
8
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.
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.
9
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 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.
10
(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.
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:
11
(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.
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 Commonwealth of Massachusetts,
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.
12
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 Series 000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000 Attention: Xxxx Xxxxxxxx
For IBT: Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, General Counsel
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 Master Trust Agreement 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.
13
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.
THE MERRIMAC SERIES
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
-----------------------------------
Title: Treasurer and Chief Financial
Officer
-----------------------------------
INVESTORS BANK & TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Senior Vice President
-----------------------------------
