Exhibit 99(k)
REGISTRAR,
TRANSFER AGENCY AND SERVICE AGREEMENT
between
THE GABELLI DIVIDEND & INCOME TRUST
and
EQUISERVE TRUST COMPANY, N.A.
TABLE OF CONTENTS
ARTICLE 1 Terms of Appointment; Duties of the Registrar.................................3
ARTICLE 2 Fees and Expenses.............................................................6
ARTICLE 3 Representations and Warranties of the Registrar...............................6
ARTICLE 4 Representations and Warranties of the Fund....................................7
ARTICLE 5 Data Access and Proprietary Information.......................................8
ARTICLE 6 Indemnification..............................................................10
ARTICLE 7 Standard of Care.............................................................12
ARTICLE 8 Covenants of the Fund and the Registrar......................................13
ARTICLE 9 Termination of Agreement.....................................................14
ARTICLE 10 Assignment...................................................................15
ARTICLE 11 Amendment....................................................................15
ARTICLE 12 [ ] Law to Apply.......................................16
ARTICLE 13 Force Majeure................................................................16
ARTICLE 14 Consequential Damages........................................................16
ARTICLE 15 Merger of Agreement..........................................................16
ARTICLE 16 Survival.....................................................................17
ARTICLE 17 Severability.................................................................17
ARTICLE 18 Counterparts.................................................................17
REGISTRAR, TRANSFER AGENCY AND SERVICE AGREEMENT
------------------------------------------------
AGREEMENT made as of the day of October, 2003, by and between The
Gabelli Dividend & Income Trust, a Delaware statutory trust, having its
principal office and place of business at Xxx Xxxxxxxxx Xxxxxx, Xxx, Xxx Xxxx,
XX 00000 (the "Fund"), and [ ], N.A., located at [ ](the "Registrar").
WHEREAS, the Fund desires to appoint the Registrar as its registrar,
transfer agent, dividend disbursing agent and agent in connection with certain
other activities and the Registrar desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE 1 Terms of Appointment; Duties of the Registrar
1.01 Subject to the terms and conditions set forth
in this Agreement, the Fund hereby employs and appoints the Registrar to act
as, and the Registrar agrees to act as registrar, transfer agent for the
Fund's authorized and issued shares of its common stock ("Shares"), dividend
disbursing agent and agent in connection with any dividend reinvestment plan
as set out in the prospectus of the Fund, corresponding to the date of this
Agreement.
1.02 The Registrar agrees that it will perform the
following services:
(a) In accordance with procedures established from time
to time by agreement between the Fund and the Registrar, the Registrar shall:
(i) Issue and record the appropriate number of Shares
as authorized and hold such shares in the appropriate
Shareholder account
(ii) Effect transfers of Shares by the registered
owners thereof upon receipt of appropriate
documentation;
(iii) Prepare and transmit payments for dividends and
distributions declared by the Fund;
(iv) Act as agent for Shareholders pursuant to the
dividend reinvestment and cash purchase plan as
amended from time to time in accordance with the
terms of the agreement to be entered into between the
Shareholders and the Registrar in substantially the
form attached as Exhibit hereto;
(v) Issue replacement certificates for those
certificates alleged to have been lost, stolen or
destroyed upon receipt by the Registrar of
indemnification satisfactory to the Registrar and
protecting the Registrar and the Fund, and the
Registrar at its option, may issue replacement
certificates in place of mutilated stock certificates
upon presentation thereof and without such indemnity.
(b) In addition to and neither in lieu nor in
contravention of the services set forth in the above paragraph (a), the
Registrar shall: (i) perform all of the customary services of a registrar,
transfer agent, dividend disbursing agent and agent of the dividend
reinvestment anc cash purchase plan as described in Article 1 consistent with
those requirements in effect as of the date of this agreement. The detailed
definition, frequency, limitations and associated costs (if any) set out in
the attached fee schedule, include but are not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing proxies,
and mailing Shareholder reports to current Shareholders, withholding taxes on
U.S. resident and non-resident alien accounts where applicable, 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 registered Shareholders.
(c) The Registrar shall provide additional services on
behalf of the Fund (i.e., escheatment services) which may be agreed upon in
writing between the Fund and the Registrar.
ARTICLE 2 Fees and Expenses
2.01 For the performance by the Registrar pursuant
to this Agreement, the Fund agrees to pay the Registrar an annual maintenance
fee as set out in the initial fee schedule attached hereto. Such fees and
out-of-pocket expenses and advances identified under Section 2.02 below may be
changed from time to time subject to mutual written agreement between the Fund
and the Registrar.
2.02 In addition to the fee paid under Section 2.01
above, the Fund agrees to reimburse the Registrar for out-of-pocket expenses,
including but not limited to confirmation production, postage, forms,
telephone, microfilm, microfiche, tabulating proxies, records storage, or
advances incurred by the Registrar for the items set out in the fee schedule
attached hereto. In addition, any other expenses incurred by the Registrar at
the request or with the consent of the Fund, will be reimbursed by the Fund.
2.03 The Fund agrees to pay all fees and
reimbursable expenses within five days following the receipt of the respective
billing notice. Postage and the cost of materials for mailing of dividends,
proxies, Fund reports and other mailings to all Shareholder accounts shall be
advanced to the Registrar by the Fund at least seven (7) days prior to the
mailing date of such materials.
ARTICLE 3 Representations and Warranties of the Registrar
The Registrar represents and warrants to the Fund that:
3.01 It is a trust company duly organized and
existing and in good standing under the laws of [ ].
3.02 It is duly qualified to carry on its business
in [ ].
3.03 It is empowered under applicable laws and by
its Charter and By-Laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been
taken to authorize it to enter into and perform this Agreement.
3.05 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 4 Representations and Warranties of the Fund
The Fund represents and warrants to the Registrar that:
4.01 It is a trust organized and existing and in
good standing under the laws of Delaware.
4.02 It is empowered under applicable laws and by
its Agreement and Declaration of Trust and By-Laws to enter into and perform
this Agreement
4.03 All proceedings required by said Agreement and
Declaration of Trust and By-Laws have been taken to authorize it to enter into
and perform this Agreement.
4.04 It is a closed-end, non-diversified investment
company registered under the Investment Company Act of 1940, as amended.
4.05 To the extent required by federal securities
laws a registration statement under the Securities Act of 1933, as amended is
currently effective and appropriate state securities law filings have been
made with respect to all Shares of the Fund being offered for sale;
information to the contrary will result in immediate notification to the
Registrar.
4.06 It shall make all required filings under
federal and state securities laws.
ARTICLE 5 Data Access and Proprietary Information
5.01 The Fund acknowledges that the data bases,
computer programs, screen formats, interactive design techniques, and other
information furnished to the Fund by the Registrar are provided solely in
connection with the services rendered under this Agreement and constitute
copyrighted trade secrets or proprietary information of substantial value to
the Registrar. Such databases, programs, formats, designs, techniques and
other information are collectively referred to below as "Proprietary
Information." The Fund agrees that it shall treat all Proprietary Information
to any person or organization except as expressly permitted hereunder. The
Fund agrees for itself and its employees and agents:
(a) to use such programs and databases (i) solely on the
Fund computers, or (ii) solely from equipment at the locations agreed to
between the Fund and the Registrar and (iii) in accordance with the
Registrar's applicable user documentation;
(b) to refrain from copying or duplicating in any way
(other than in the normal course of performing processing on the Fund's
computers) any part of any Proprietary Information;
(c) to refrain from obtaining unauthorized access to any
programs, data or other information not owned by the Fund, and if such access
is accidentally obtained, to respect and safeguard the same Proprietary
Information;
(d) to refrain from causing or allowing information
transmitted from the Registrar's computer to the Funds' terminal to be
retransmitted to any other computer terminal or other device except as
expressly permitted by the Registrar, (such permission not to be unreasonably
withheld);
(e) that the Fund shall have access only to those
authorized transactions as agreed to between the Fund and the Registrar; and
(f) to honor reasonable written requests made by the
Registrar to protect at the Registrar's expense the rights of the Registrar in
Proprietary Information at common law and under applicable statues.
5.02 If the transactions available to the Fund
include the ability to originate electronic instructions to the Registrar in
order to (i) effect the transfer or movement of cash or Shares or (ii)
transmit Shareholder information or other information, then in such event the
Registrar shall be entitled to rely on the validity and authenticity of such
instruction without undertaking any further inquiry as long as such
instruction is undertaken in conformity with security procedures established
by the Registrar from time to time.
ARTICLE 6 Indemnification
6.01 The Registrar shall not be responsible for,
and the Fund shall indemnify and hold the Registrar harmless from and against,
any and all losses, damages, costs, charges, counsel fees, payments, expenses
and liability arising out of or attributable to:
(a) All actions of the Registrar or its agents or
subcontractors required to be taken pursuant to this Agreement; provided that
such actions are taken in good faith and without negligence or willful
misconduct.
(b) The Fund's lack of good faith, negligence or willful
misconduct which arise out of the breach of any representation or warranty of
the Fund hereunder.
(c) The reliance on or use by the Registrar or its agents
or subcontractors of information, records, documents or services which (i) are
received by the Registrar or its agents or subcontractors, and (ii) have been
prepared, maintained or performed by the Fund or any other person or firm on
behalf of the Fund including but not limited to any previous transfer agent
registrar.
(d) The reliance on, or the carrying out by the Registrar
or its agents or subcontractors of any instructions or requests of the Fund.
(e) The offer or sale of Shares 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.
6.02 At any time the Registrar may apply to any
officer of the Fund for instructions, and may consult with legal counsel with
respect to any matter arising in connection with the services to be performed
by the Registrar under this Agreement, and the Registrar and its agents or
subcontractors shall not be liable and shall be indemnified by the Fund for
any action taken or omitted by it in reliance upon such instructions or upon
the opinion of such counsel. The Registrar, its agents and subcontractors
shall be protected and indemnified in acting upon any paper or document
furnished by or on behalf of the Fund, 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 the Registrar or its agents
or subcontractors by telephone, in person, machine readable input, telex, CRT
data entry or other similar means authorized by the Fund, and shall not be
held to have notice thereof from the Fund. The Registrar, 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 the officers of the Fund, and the proper
countersignature of any former transfer agent or former registrar, or of a
co-transfer agent or co-registrar.
6.03 In order that the indemnification provisions
contained in this Article 6 shall apply, upon the assertion of a claim for
which the Fund may be required to indemnify the Registrar, the Registrar shall
promptly notify the Fund in writing of such assertion, and shall keep the Fund
advised with respect to all developments concerning such claim. The Fund shall
have the option to participate with the Registrar in the defense of such claim
or to defend against said claim in its own name or in the name of the
Registrar. The Registrar shall in no case confess any claim or make any
compromise in any case in which the Fund may be required to indemnify the
Registrar except with the Fund's prior written consent.
ARTICLE 7 Standard of Care
7.01 The Registrar shall at all times act in good
faith and agrees to use its best efforts within reasonable limits to insure
the accuracy of all services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due to errors unless
said errors are caused by its negligence, bad faith, or willful misconduct of
that of its employees.
ARTICLE 8 Covenants of the Fund and the Registrar
8.01 The Fund shall promptly furnish to the
Registrar the following:
(a) A certified copy of the resolution of the Board of
Directors of the Fund authorizing the appointment of the Registrar and the
execution and delivery of this Agreement.
(b) A copy of the Articles of Incorporation and By-Laws
of the Fund and all amendments thereto.
8.02 The Registrar hereby agrees to establish and
maintain facilities and procedures reasonably acceptable to the Fund 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.
8.03 The Registrar 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 Investment Company Act
of 1940, as amended, and the Rules thereunder, the Registrar agrees that all
such records prepared or maintained by the Registrar relating to the services
to be performed by the Registrar hereunder are the property of the Fund and
will be preserved, maintained and made available in accordance with such
Section and Rules, and will be surrendered promptly to the Fund on and in
accordance with its request.
8.04 The Registrar and the Fund 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 requested by a
governmental entity or as may be required by law.
8.05 In cases of any requests or demands for the
inspection of the Shareholder records of the Fund, the Registrar will endeavor
to notify the Fund and to secure instructions from an authorized officer of
the Fund as to such inspection. The Registrar 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 9 Termination of Agreement
9.01 This Agreement may be terminated by either
party upon one hundred twenty (120) days written notice to the other.
9.02 Should the Fund exercise its right to
terminate, all out- of-pocket expenses associated with the movement of records
and material will be borne by the Fund. Additionally, the Registrar reserves
the right to charge for any other reasonable expenses associated with such
termination and/or a charge equivalent to the average of three (3) month's
fees.
ARTICLE 10 Assignment
10.01 Except as provided in Section 10.03 below,
neither this Agreement nor any rights or obligations hereunder may be assigned
by either party without the written consent of the other party.
10.02 This Agreement shall inure to the benefit of
and be binding upon the parties and their respective permitted successors and
assigns.
10.03 The Registrar may, without further consent on
the part of the Fund, subcontract for the performance hereof with (i) Boston
Financial Data Services, Inc., a Massachusetts corporation ("BFDS"), which is
duly registered as a transfer agent pursuant to Section 17A(c)(2) of the
Securities Exchange Act of 1934 ("Section 17A(c)(2)"), or (ii) a BFDS
affiliate duly registered as a transfer agent pursuant to Section 17A(c)(2),
provided, however, that the Registrar shall be as fully responsible to the
Fund for the acts and omissions of any subcontractor as it is for its own acts
and omissions.
ARTICLE 11 Amendment
11.01 This Agreement may be amended or modified by a
written agreement executed by both parties and authorized or approved by a
resolution of the Board of Directors of the Fund.
ARTICLE 12 Massachusetts Law to Apply
12.01 This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of The
Commonwealth of Massachusetts.
ARTICLE 13 Force Majeure
13.01 In the event either party is unable to perform
its obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage reasonably beyond its
control, or other causes reasonably beyond its control, such party shall not
be liable for damages to the other for any damages resulting from such failure
to perform or otherwise from such causes.
ARTICLE 14 Consequential Damages
14.01 Neither party to this Agreement shall be
liable to the other party for consequential damages under any provision of
this Agreement or for any consequential damages arising out of any act or
failure to act hereunder.
ARTICLE 15 Merger of Agreement
15.01 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.
ARTICLE 16 Survival
16.01 All provisions regarding indemnification,
warranty, liability and limits thereon, and confidentiality and/or protection
of proprietary rights and trade secrets shall survive the termination of this
Agreement.
ARTICLE 17 Severability
17.01 If any provision or provisions of this
Agreement shall be held to be invalid, unlawful, or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired.
ARTICLE 18 Counterparts
18.01 This Agreement may be executed by the parties
hereto on any number of counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
The Gabelli Dividend & Income Trust
BY:________________________________
[Registrar]
BY:________________________________
