EXHIBIT-99.B9(a)
ADMINISTRATION AGREEMENT
Between
THE MERRIMAC SERIES
and
INVESTORS BANK & TRUST COMPANY
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT is made as of June 1, 1998 by and between The
Merrimac Series, a corporation organized under the laws of Delaware (the
"Fund"), and Investors Bank & Trust Company, a Massachusetts trust company
("IBT").
WHEREAS, the Fund is registered as a management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and is entering
into this Agreement on behalf of the portfolios listed on Appendix 3 hereto, as
such Appendix 3 may be amended from time to time (each a "Portfolio" and
collectively, the "Portfolios"); and
WHEREAS, the Fund desires to retain IBT to render certain administrative
services to the Fund and IBT is willing to render such services.
NOW, THEREFORE, in consideration of the mutual covenants herein set forth, it is
agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints IBT to act as Administrator of the Fund
on the terms set forth in this Agreement. IBT accepts such appointment and
agrees to render the services herein set forth for the compensation herein
provided.
2. Delivery of Documents. The Fund has furnished IBT with copies properly
certified or authenticated of each of the following:
(a) Resolutions of the Fund's Board of Directors
authorizing the appointment of IBT to provide certain
administrative services to the Fund and approving this
Agreement;
(b) The Fund's incorporating documents filed with the
state of Delaware on March 31, 1998 and all amendments
thereto (the "Articles");
(c) The Fund's by-laws and all amendments thereto (the
"By-Laws");
(d) The Fund's agreements with all service providers which
include any investment advisory agreements, sub-investment
advisory agreements, custody agreements, distribution
agreements and transfer agency agreements (collectively,
the "Agreements");
(e) The Fund's most recent Registration Statement under
the 1940 Act and all amendments thereto; and
(f) The Fund's most recent Prospectus and Statement of
Additional Information (the "Offering Documents"); and
(g) Such other certificates, documents or opinions as may
mutually be deemed necessary or appropriate for IBT in the
proper performance of its duties hereunder.
The Fund will immediately furnish IBT with copies of all
amendments of or supplements to the foregoing.
Furthermore, the Fund will notify IBT as soon as possible
of any matter which may materially affect the performance
by IBT of its services under this Agreement.
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3. Duties of Administrator. Subject to the supervision and direction of the
Board of Directors of the Fund, IBT, as Administrator, will assist in conducting
various aspects of the Fund's administrative operations and undertakes to
perform the services described in Appendix 1 hereto. IBT may, from time to time,
perform additional duties and functions which shall be set forth in an amendment
to such Appendix 1 executed by both parties. At such time, the fee schedule
included in Appendix 2 hereto shall be appropriately amended.
In performing all services under this Agreement, IBT shall act in conformity
with the Fund's Articles and By-Laws and the 1940 Act, as the same may be
amended from time to time, and the investment objectives, investment policies
and other practices and policies set forth in the Fund's Registration Statement,
as the same may be amended from time to time. Notwithstanding any item discussed
herein, IBT has no discretion over the Fund's assets or choice of investments
and cannot be held liable for any problem relating to such investments.
4. Duties of the Fund.
(a) The Fund is solely responsible (through its transfer
agent or otherwise) for (i) providing timely and accurate
reports ("Daily Sales Reports") which will enable IBT as
Administrator to monitor the total number of shares sold
in each state on a daily basis and (ii) identifying any
exempt transactions ("Exempt Transactions") which are to
be excluded from the Daily Sales Reports.
(b) The Fund agrees to make its legal counsel available to
IBT for instruction with respect to any matter of law
arising in connection with IBT's duties hereunder, and the
Fund further agrees that IBT shall be entitled to rely on
such instruction without further investigation on the part
of IBT.
5. Fees and Expenses.
(a) For the services to be rendered and the facilities to
be furnished by IBT, as provided for in this Agreement,
the Fund will compensate IBT in accordance with the fee
schedule attached as Appendix 2 hereto. Such fees do not
include out-of-pocket disbursements (as delineated on the
fee schedule or other expenses with the prior approval of
the Fund's management) of IBT for which IBT shall be
entitled to xxxx the Fund separately and for which the
Fund shall reimburse IBT.
(b) IBT shall not be required to pay any expenses incurred
by the Fund.
6. Limitation of Liability.
(a) IBT, its directors, officers, employees and agents
shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Fund in connection
with the performance of its obligations and duties under
this Agreement, except a loss resulting from willful
misfeasance, bad faith or negligence in the performance of
such obligations and duties, or by reason of its reckless
disregard thereof. The Fund will indemnify IBT, its
directors, officers, employees and agents against and hold
it and them harmless from any and all losses, claims,
damages, liabilities or expenses (including legal fees and
expenses) resulting from any claim, demand, action or suit
(i) arising out of the actions or omissions of the Fund,
including, but not limited to, inaccurate Daily Sales
Reports and misidentification of Exempt Transactions; (ii)
arising out of the offer or sale of any securities of the
Fund in violation of (x) any requirement under the federal
securities laws or regulations, (y) any requirement under
the securities laws or regulations of any state, or (z)
any stop order or other determination or ruling by any
federal or state agency with respect to the offer or sale
of such securities; or (iii) not resulting from the
willful misfeasance, bad faith or negligence of IBT in the
performance of such obligations and duties or by reason of
its reckless disregard thereof.
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(b) IBT may apply to the Fund at any time for instructions
and may consult counsel for the Fund, or its own counsel,
and with accountants and other experts with respect to any
matter arising in connection with its duties hereunder,
and IBT shall not be liable or accountable for any action
taken or omitted by it in good faith in accordance with
such instruction, or with the opinion of such counsel,
accountants, or other experts. IBT shall not be liable for
any act or omission taken or not taken in reliance upon
any document, certificate or instrument which it
reasonably believes to be genuine and to be signed or
presented by the proper person or persons. IBT shall not
be held to have notice of any change of authority of any
officers, employees, or agents of the Fund until receipt
of written notice thereof has been received by IBT from
the Fund.
(c) In the event IBT is unable to perform, or is delayed
in performing, its obligations under the terms of this
Agreement because of acts of God, strikes, legal
constraint, government actions, war, emergency conditions,
interruption of electrical power or other utilities,
equipment or transmission failure or damage reasonably
beyond its control or other causes reasonably beyond its
control, IBT shall not be liable to the Fund for any
damages resulting from such failure to perform, delay in
performance, or otherwise from such causes.
(d) In no event shall IBT be liable for special,
incidental or consequential damages, even if advised of
the possibility of such damages.
7. Termination of Agreement.
(a) The term of this Agreement shall be three years
commencing upon the date hereof (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.
(i) 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 violating party does not cure such
violation within 90 days of receipt of written
notice from the non-violating party of such
violation.
(ii) 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 7(a)(ii) shall be
effective upon expiration of such sixty days,
provided, however, that the effective date of such
termination may be postponed, at the request of
the Fund, to a date not more than ninety days
after delivery of the written notice in order to
give the Fund an opportunity to make suitable
arrangements for a successor administrator.
(b) At any time after the termination of this Agreement,
the Fund may, upon written request, have reasonable access
to the records of IBT relating to its performance of its
duties as Administrator.
8. Miscellaneous.
(a) Any notice or other instrument authorized or required
by this Agreement to be given in writing to the Fund or
IBT shall be sufficiently given if addressed to that party
and received by it at its office set forth below or at
such other place as it may from time to time designate in
writing.
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To the Fund: Merrimac Series
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
To IBT: Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, General Counsel
(b) This Agreement shall extend to and shall be binding
upon the parties hereto and their respective successors
and assigns; provided, however, that this Agreement shall
not be assignable without the written consent of the other
party.
(c) This Agreement shall be construed in accordance with
the laws of the Commonwealth of Massachusetts, without
regard to its conflict of laws provisions.
(d) This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an
original and which collectively shall be deemed to
constitute only one instrument.
(e) The captions of this Agreement are included for
convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect
their construction or effect.
9. Confidentiality. 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 in the performance of duties hereunder or as otherwise required by law.
10. Use of Name. The Fund shall not use the name of IBT or any of its affiliates
in any Offering Documents, sales literature or other material relating to the
Fund in a manner not approved by IBT prior thereto in writing; provided however,
that the approval of IBT shall not be required for any use of its name which
merely refers in accurate and factual terms to its appointment hereunder or
which is required by the Securities and Exchange Commission or any state
securities authority or any other appropriate regulatory, governmental or
judicial authority; provided further, that in no event shall such approval be
unreasonably withheld or delayed.
11. 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.
12. Several Obligations of the Portfolios. This Agreement is an agreement
entered into between IBT and the Fund with respect to each Portfolio. With
respect to any obligation of the Fund on behalf of any Portfolio arising out of
this Agreement, IBT shall look for payment or satisfaction of such obligation
solely to the assets of the Portfolio to which such obligation relates as though
IBT had separately contracted with the Fund by separate written instrument with
respect to each Portfolio.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed and delivered by their duly authorized officers as of the date first
written above.
THE MERRIMAC SERIES
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
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Title: Treasurer and Chief Financial
Officer
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INVESTORS BANK & TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Senior Vice President
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Appendix 1
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Services to be Performed by IBT
Appendix 2
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Fee Schedule
Appendix 3
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Portfolios
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The Merrimac Cash Series
The Merrimac Treasury Series
The Merrimac Treasury Plus Series
The Merrimac Short-Term Asset Reserve Series
