Exhibit 9(b)
ADMINISTRATION AGREEMENT
Between
MERRIMAC MASTER PORTFOLIO
and
IBT FUND SERVICES (IRELAND) LIMITED
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ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT is made as of November 1, 1996 by and
between Merrimac Master Portfolio, a corporation organized under the laws of the
state of New York (the "Fund"), and IBT Fund Services (Ireland) Limited, a
limited liability company incorporated under the laws of Ireland.
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 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 Confidential Offering Circular (the
"Offering Circular"); 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.
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
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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.
(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,
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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.
To the Fund: Merrimac Master Portfolio
P.O. Box 501
Cardinal Avenue
Georgetown, Grand Cayman
Cayman Island, B.W.I.
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To IBT: IBT Fund Services (Ireland) Limited
Deloitte & Touche House
00 Xxxxxxxxx Xxxxxxx
Xxxxxx 0, Xxxxxxx
Attention: Xxxxxxx X. X'Xxxxx
With a copy to: Xxxx X. Xxxxx
General Counsel
Investors Bank & Trust Company
00 Xxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, XX 00000-0000
(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 state of New York, 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 Circular, 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 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.
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.
MERRIMAC MASTER PORTFOLIO
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
IBT FUND SERVICES (IRELAND) LIMITED
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President & C.E.O.
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
Merrimac Cash Portfolio
