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TRANSFER AGENCY AND SERVICE AGREEMENT
between
UBS PRIVATE INVESTOR FUNDS, INC.
and
INVESTORS BANK & TRUST COMPANY
2
TABLE OF CONTENTS
ARTICLE 1. Terms of Appointment; Duties of the Bank . . . . . . . . . . 2
ARTICLE 2. Sale of Company Shares . . . . . . . . . . . . . . . . . . . 5
ARTICLE 3. Returned Checks . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 4. Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 5. Transfers and Exchanges . . . . . . . . . . . . . . . . . . . 7
ARTICLE 6. Right to Seek Assurances . . . . . . . . . . . . . . . . . . 7
ARTICLE 7. Distributions . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 8. Other Duties . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 9. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 10. Books and Records . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 11. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 12. Representations and Warranties of the Bank . . . . . . . . . 10
ARTICLE 13. Representations and Warranties of the Company . . . . . . . . 11
ARTICLE 14. Indemnification . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 15. Covenants of the Company and the Bank . . . . . . . . . . . 14
ARTICLE 16. Term of Agreement . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 17. Additional Funds . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 18. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 19. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 20. Massachusetts Law to Apply . . . . . . . . . . . . . . . . . 17
ARTICLE 21. Merger of Agreement and Severability . . . . . . . . . . . . 17
ARTICLE 22. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 23. Confidentiality . . . . . . . . . . . . . . . . . . . . . . 18
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT effective as of the ___ day of January, 1996 by and between
UBS Private Investor Funds, Inc., a corporation organized under the laws of
Maryland (the "Company"), and INVESTORS BANK & TRUST COMPANY, a
Massachusetts trust company (the "Bank").
WITNESSETH:
WHEREAS, the Company desires to appoint the bank as its transfer
agent, dividend disbursing agent and agent in connection with certain other
activities, and the Bank desires to accept such appointment;
WHEREAS, the Bank 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 four
series, UBS Tax Exempt Bond Fund, UBS U.S. Equity Fund, UBS Bond Fund, UBS
International Equity Fund (such series, together with all other series
subsequently established by the Company and made subject to this Agreement
in accordance with Article 17, being herein referred to as the "Funds");
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the Company and the Bank agree as follows:
DEFINITIONS.
Authorized Person. Authorized Person will mean any of the persons
duly authorized to give Proper Instructions or otherwise act on behalf of
the Fund by appropriate resolution of its Board, and set forth in a
certificate as required by Article 15 hereof.
Proper Instructions. Proper Instructions shall mean (i) instructions
regarding the purchase or sale of Fund Shares, and payments and deliveries
in connection therewith, given by an Authorized Person as shall have been
designated in an Officers' Certificate, such instructions to be given in
such form and manner as the Bank and the Fund shall agree upon from time to
time, and (ii) instructions (which may be
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continuing instructions) regarding other matters signed or initialed by
such one or more persons from time to time designated in an Officers'
Certificate as having been authorized by the Board. Oral instructions will
be considered Proper Instructions if the Bank reasonably believes them to
have been given by a person authorized to give such instructions with
respect to the transaction involved. The Fund shall cause all oral
instructions to be promptly confirmed in writing. The Bank shall act upon
and comply with any subsequent Proper Instruction which modifies a prior
instruction and the sole obligation of the Bank with respect to any follow-
up or confirmatory instruction shall be to make reasonable efforts to
detect any discrepancy between the original instruction and such
confirmation and to report such discrepancy to the Fund. The Fund shall be
responsible, at the Fund's expense, for taking any action, including any
reprocessing, necessary to correct any such discrepancy or error, and to
the extent such action requires the Bank to act, the Fund shall give the
Bank specific Proper Instructions as to the action required. Upon receipt
of an Officers' Certificate as to the authorization by the Board
accompanied by a detailed description of procedures approved by the Fund,
Proper Instructions may include communication effected directly between
electro-mechanical or electronic devices provided that the Board and the
Bank are satisfied that such procedures afford adequate safeguards for the
Fund's assets.
ARTICLE 1. Terms of Appointment; Duties of the Bank
1.01 Subject to the terms and conditions set forth in this
Agreement, the Company on behalf of the Funds, hereby employs and appoints
the Bank to act as, and the Bank agrees to act as, transfer agent for each
of the Funds' authorized and issued shares ("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 currently effective prospectus and statement of
additional information, as each may be amended from time to time (the
"Prospectus"), of the Company, including without limitation any periodic
investment plan or periodic withdrawal program.
1.02 The Bank agrees that it will perform the following services:
(a) In connection with procedures established from time to time by
agreement between the Company and the Bank the Bank shall: (i) Receive for
acceptance, orders for the purchase of Shares, and promptly deliver payment
and
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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 or performed
by it hereunder. All records shall be available for inspection and use by
the Company. Where applicable, such records shall be maintained by the
Bank 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, the Bank 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) 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. The Bank shall
also
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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 federal or
state registration of the issue or sale of such Shares, which functions
shall be the sole responsibility of the Company; and
(x) Provide the Fund with monthly and year-to-date summaries of
purchases, redemptions, and dividend reinvestments. The Bank will also
confirm such annual activity to the Fund's auditors upon reasonable
request.
(b) In addition to and not in lieu of the services set forth in the
above paragraph (a) or in any Schedule hereto, the Bank 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
prospectuses 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, or in the case of
shareholders who are clients of UBS, providing periodic transaction and
position files for such clients to UBS for incorporation into UBS periodic
statements, responding to Shareholder telephone calls and Shareholder
correspondence, or assisting UBS in such responses for its clients who are
Fund Shareholders, preparing and mailing activity statements for
Shareholders, providing Shareholder account information; and providing
daily reports to the Company or a designated party, and (ii) provide a
system which will enable the Company to monitor the total number of shares
sold in each State. The Administrator of the Company shall (i) identify to
the Bank in writing those transactions and assets to be treated as exempt
from blue sky reporting for each State, (ii) verify the establishment of
transactions for each State on the system prior to activation and
thereafter monitor the daily activity for each State and (iii) provide
daily reports to the Administrator of the Company or a designated party.
The
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responsibility of the Bank 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 Funds and the reporting of such transactions to
the Administrator of the Company as provided above. The Bank shall also
furnish to the Company monthly reconciliation of total shares sold in all
states per blue sky records to total Fund Share sales as reported to the
Custodian.
(c) Additionally, the Bank 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 Funds of such transactions so identified on
a daily and cumulative basis.
ARTICLE 2. Sale of Company Shares
2.01 Whenever the Distributor of the Company shall sell or cause to
be sold any Shares of a Fund, the Distributor shall deliver or cause to be
delivered to the Bank a document duly specifying: (i) the name of the Fund
whose Share were sold; (ii) the number of Shares sold or the total dollar
amount to be invested, 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 The Bank will, upon receipt by it of a check, wire transfer, or
other payment identified by it as an investment in Shares of one of the
Funds and drawn or endorsed to the Bank as agent for, or identified as
being the account of, one of the Funds, promptly deposit such check or
other payment to the appropriate account postings necessary to reflect the
investment. The Bank 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 the Bank, the Bank shall issue to the purchaser or his
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 prospectus and
applicable Federal law or regulation. In issuing Shares to a purchaser or
his authorized agent, the Bank shall be entitled to rely upon the latest
directions, if any, previously received by the Bank from the purchaser
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or his authorized agent concerning the delivery of such Shares.
2.04 The Bank 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 Funds in question has been suspended or
discontinued, and the Bank shall be entitled to rely upon such written
instructions or written notification.
2.05 Upon the issuance of any Shares of any Funds in accordance with
foregoing provisions of this Section, the Bank 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 The Bank may establish, given the written consent of the
Company, 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, the Bank will take such steps as
the Bank 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 the Bank, regarding purchases and redemptions of
Shares, are adhered to by the Bank, the Bank 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
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 the Bank will
duly process all redemption requests.
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ARTICLE 5. Transfers and Exchanges
5.01 The Bank is authorized to review and process transfers of Shares
of each Fund, exchanges between Funds on the records of the Funds
maintained by the Bank, 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, the Bank 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, the Bank 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, the Bank will process such exchange
in the same manner as a redemption and sale of Shares, except that it may,
in accordance with procedures agreed to by the Company and the Bank, waive
requirements for information and documentation.
ARTICLE 6. Right to Seek Assurances
6.01 The Bank reserves the right to refuse to transfer or redeem
Shares until it is reasonably 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 the Bank, in
its judgment, deems improper or unauthorized, or until it is satisfied that
there is no reasonable basis for any claims adverse to such transfer or
redemption. The Bank 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 of its own
legal counsel protect it in not requiring certain documents in connection
with the transfer or redemption of Shares of any Fund, and the Company
shall indemnify the Bank for any act done or omitted by it in reliance upon
such laws or opinions of counsel of the Company or of its own counsel.
ARTICLE 7. Distributions
7.01 The Company will promptly notify the Bank of the declaration of
any dividend or distribution. The Company shall furnish to the Bank 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 the
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Bank to rely on 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 the date and the
total amount payable to the Bank 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 the
Bank on the payment date.
7.02 The Bank, 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. The Bank will calculate,
prepare and mail checks to (at the address as it appears on the records of
the Bank), or (where appropriate) credit such dividend or distribution to
the account of, Fund Shareholders, and maintain and safeguard all
underlying records.
7.03 The Bank will replace lost checks at its discretion and in
conformity with regular business practices.
7.04 The Bank 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 The Bank 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 the Bank shall not receive from the Custodian sufficient cash
to make payment to all Shareholders of the Company as of the record date,
the Bank shall, upon notifying the Company, withhold payment to all
Shareholders of record as of the record date until such sufficient cash is
provided to the Bank.
ARTICLE 8. Other Duties
8.01 In addition to the duties expressly provided for herein, the
Bank 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.
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ARTICLE 9. Taxes
9.01 It is understood that the Bank 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 The Bank 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 the Bank 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 at reasonable
times. The Bank 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 the
Bank's files, records and documents created and maintained by the Bank in
performance of its service or for its protection. At the end of the six-
year retention period, such periods and 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 Funds and the
Bank. The Bank 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. The Bank
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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 the Bank pursuant to this Agreement, the
Funds agree to pay the Bank an annual maintenance fee for each Shareholder
account as set out in the initial fee schedule attached 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 Funds and the Bank.
11.02 In addition to the fee paid under Section 11.01 above, the
Funds agree to reimburse the Bank for out-of-pocket expenses or advances
incurred by the Bank for the items set out in the fee schedule attached
hereto. In addition, any other expenses incurred by the Bank at the
request or with the consent of the Funds including, without limitation, any
equipment or supplies specifically ordered by the Company or required to be
purchased by the Company, will be reimbursed by the Funds provided that the
Bank expressly represents to the Company that any such equipment or
supplies will be used exclusively for the Company or the Funds.
11.03 The Funds agree to pay all fees and reimbursable expenses
within thirty days following the mailing of the respective billing notice
unless the Funds notify the Bank that such fees and/or expenses are in
dispute. The Bank will notify the Company of any amounts needed for
postage for the mailing of dividends, proxies, Fund reports and other
mailings to all shareholder accounts, and such amounts shall be advanced to
the Bank by the Funds at least seven (7) days prior to the mailing date of
such material.
ARTICLE 12. Representations and Warranties of the Bank
The Bank 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 the Commonwealth of Massachusetts.
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.
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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 the Bank 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 preform 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 an open-end investment company registered under the 0000
Xxx.
13.05 A registration statement on Form N-1A (including a prospectus
and statement of additional information) under the Securities Act of 1933
and the 1940 Act is currently effective and will remain effective, and
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 Funds.
ARTICLE 14. Indemnification
14.01 Except as set forth in subparagraph (f) hereof, the Bank shall
not be responsible for,and the Company shall indemnify and hold the Bank
harmless from and against, any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising out of or
attributable to:
(a) All actions taken or omitted to be taken by the Bank or its agent
or subcontractors in good faith in reliance on or use by the Bank or its
agents or subcontractors of information, records and documents which
(i) are received by the Bank or its agents or subcontractors and furnished
to it by or on behalf of the Funds, (ii) have been prepared and/or
maintained by the Funds or any other
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person or firm on behalf of the Funds, and (iii) were received by the Bank
or its agents or subcontractors from a prior transfer agent.
(b) any action taken or omitted to be taken by the Bank in connection
with its appointment in good faith in reliance upon any law, act,
regulation or interpretation of the same even though the same may
thereafter have been altered, changed, amended or repealed.
(c) The Funds' 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 Funds hereunder.
(d) The reliance on, or the carrying out by the Bank or its agents
or subcontractors of any instructions or requests, whether written or oral,
received from Authorized Persons of the Funds.
(e) The offer or sale of Shares by the Company in violation of any
requirement under the federal securities laws or regulations or the
securities laws or regulations of any State that such Shares be registered
in such State or in violation of any stop order or other determination or
ruling by any federal agency or any State with respect to the offer or sale
of such Shares in such state.
(f) In addition to any other limitation provided herein, or by law,
indemnification under this Agreement shall not apply to actions or
omissions of the Bank or its directors, officers, employees, agents or
subcontractors in cases of its own gross negligence, willful misconduct,
bad faith, reckless disregard of its duties or their own duties herein
under, knowing violation of law or fraud.
14.02 The Bank shall indemnify and hold the Funds harmless from and
against any and all losses, damages, costs, charges, reasonable counsel
fees, payments, expenses and liability arising out of or attributed to any
action or failure or omission to act by the Bank as a result of the Bank's
lack of good faith, negligence, willful misconduct, knowing violation of
law or fraud.
14.03 At any time the Bank may apply to any Authorized Person of the
Company for instructions, and may consult with legal counsel with respect
to any matter arising in connection with the services to be performed by
the Bank under this Agreement and, subject to Section 14.01, the Bank and
its agents or subcontractors shall not be liable and
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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. The Bank, its agents and
subcontractors shall be protected and indemnified in acting upon any paper
or document furnished by or on behalf of the Funds, reasonably believed to
be genuine and to have been signed by an Authorized Person, or upon any
instruction, information, data, records or documents provided the Bank or
its agents or subcontractors by machine readable input, telex, CRT data
entry or other similar means authorized by the Funds, and shall not be held
to have notice of any change of authority of any person, until receipt of
written notice thereof from the Funds. The Bank, 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. The Bank represents that it currently has and intends to
maintain adequate back-up facilities or other disaster recovery programs
and procedures designed to minimize service disruption caused by any such
act of God or other event referred to above.
14.05 Neither party to this Agreement shall be liable to the other
party for consequential 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 who may be required to indemnify shall
have the option to participate with the party seeking indemnification in
the defense of such claim. 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
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with the other party's prior written consent, which consent shall not be
unreasonably withheld.
ARTICLE 15. Covenants of the Company and the Bank
15.01 The Company shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Directors of the
Company authorizing the appointment of the Bank 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 the Bank, and a Certificate providing
specimen signatures for such authorized persons.
(d) Certificates as to any change in any Authorized Person 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 Funds with the name, address
and tax identification number of each Shareholder, and the number of Shares
of the Funds 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 Funds, all of which shall be as of the date the
Bank commences operations as the Company's transfer agent.
(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 Funds registration statement on Form N-1A as
amended and declared effective by the Securities and
15
Exchange Commission and all post-effective amendments thereto.
(k) Such other certificates, documents or opinions as may mutually
be deemed necessary or appropriate for the Bank in the proper performance
of its duties.
15.02 The Bank 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 The Bank 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,
the Bank agrees that all such records prepared or maintained by the Bank
relating to the services to be performed by the Bank 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 The Bank 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, the Bank will endeavor to notify the
Company and to secure instructions from an authorized officer of the
Company as to such instruction. The Bank reserves the right, however, to
exhibit the Shareholder records to any person whenever it is advised by its
counsel that it may be held liable for the failure to exhibit the
Shareholder records to such person.
ARTICLE 16. Term of Agreement
16.01 This Agreement shall become effective on the date hereof (the
"Effective Date") and shall continue in effect for one year from the
Effective Date (the "Initial Term") and from year to year thereafter with
respect to each Fund, provided that this Agreement may be terminated by
either party at any time without payment of any penalty upon sixty (60)
days written notice to the other. In the event
16
such notice is given by the Company, it shall be accompanied by a
resolution of the Board of Directors, certified by the Secretary, electing
to terminate this Agreement and designating 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, the Bank reserves the right to
charge for 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 with respect to which it
desires to have the Bank render services as transfer agent under the terms
hereof, it shall so notify the Bank in writing, and if the Bank agrees in
writing to provide such services, such series 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 The Bank may subcontract for the performance of any of the
services to be provided hereunder to third parties, including any affiliate
of the Bank, provided that the Bank shall remain liable hereunder for any
acts or omissions of any subcontractor as if performed by the Bank, and
that the Board of Directors of the Company will have previously approved
any such subcontractor provided however, such approval not be unreasonably
withheld.
ARTICLE 19. Amendment
19.01 This Agreement may be amended or modified by a written
agreement executed by both parties.
17
ARTICLE 20. Massachusetts Law to Apply
20.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
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): UBS Private Investors Funds, Inc.
c/o Signature Financial Group, Inc.
000 Xxxxxxx Xxx.
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxxxx
with a copy to
UBS Private Investor Funds, Inc.
x/x Xxxxx Xxxx xx Xxxxxxxxxxx,
Xxx Xxxx Xxxxxx
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxx
For the Bank: Investors Bank & Trust Company
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx Xxxx
18
ARTICLE 23. Confidentiality
23.01 Both parties hereto agree that any non-public information
obtained hereunder concerning the other party is confidential and may not
be disclosed to any other person without the consent of the other party,
except as may be required by applicable law or at the request of a
governmental agency. The parties further agree that a breach of this
provision would irreparably damage the other party and accordingly agree
that each of them is entitled, without bond or other security, to an
injunction or injunctions to prevent breaches of this provision.
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.
UBS Private Investor Funds, Inc.
ATTEST: _________________________________
By:
______________________ Name:
Title:
Investors Bank & Trust Company
ATTEST: _________________________________
By:
______________________ Name:
Title:
DATE: _______________________
