9/10/2001
MUTUAL FUND CUSTODY AND
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SERVICES AGREEMENT
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TABLE OF CONTENTS
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SECTION PAGE
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DEFINITIONS....................................................................1
ARTICLE I - CUSTODY............................................................4
1. Appointment of Custodian..............................................4
2. Custody of Cash and Securities........................................4
3. Settlement of Fund Transactions.......................................8
4. Lending of Securities.................................................9
5. Persons Having Access to Assets of the Fund...........................9
6. Standard of Care; Scope of Custodial Responsibilities................10
7. Appointment of Subcustodians........................................11
8. Overdraft Facility and Security for Payment..........................12
9. Tax Obligations......................................................12
ARTICLE II - FOREIGN CUSTODY MANAGER SERVICES.................................13
1. Delegation...........................................................13
2. Changes to Appendix C................................................13
3. Reports to Board.....................................................13
4. Monitoring System....................................................13
5. Standard of Care.....................................................13
6. Use of Securities Depositories.......................................14
ARTICLE III - Information Services............................................14
1. Risk Analysis........................................................14
2. Monitoring of Securities Depositories................................14
3. Use of Agents........................................................14
4. Exercise of Reasonable Care..........................................15
5. Liabilities and Warranties...........................................15
ARTICLE IV - GENERAL PROVISIONS...............................................15
1. Compensation.........................................................15
2. Insolvency of Foreign Custodians.....................................15
3. Liability for Depositories...........................................16
4. Damages..............................................................16
5. Indemnification; Liability of the Fund...............................16
6. Force Majeure........................................................16
7. Termination..........................................................16
8. Inspection of Books and Records......................................17
9. Miscellaneous........................................................17
APPENDIX A.....Authorized Persons.............................................21
APPENDIX B.....Fund Officers..................................................21
APPENDIX C.....Selected Countries.............................................22
APPENDIX D.....Information Services Agreement.................................23
MUTUAL FUND CUSTODY AND
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SERVICES AGREEMENT
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This AGREEMENT is effective as of _______________________, 200__, and is
between The Gabelli Utility Trust, Inc., (the "Company" or the "Fund") a
business trust organized under the laws of the State of Delaware having its
principal office and place of business at Xxx Xxxxxxxxx Xxxxxx, Xxx, XX
00000, and BOSTON SAFE DEPOSIT AND TRUST COMPANY, (the "Custodian") a
Massachusetts trust company with its principal place of business at Xxx
Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, the Company and the Custodian desire to restate the terms
of their existing custody agreement to reflect the changes to Rules 17f-5
and the requirements of new Rule 17f-7, and to set forth their agreement
with respect to the custody of the Funds' Securities and cash and the
processing of Securities transactions;
WHEREAS, the Board desires to delegate certain of its
responsibilities for performing the services set forth in paragraphs
(c)(1), (c)(2) and (c)(3) of Rule 17f-5 to the Custodian as a Foreign
Custody Manager; and
WHEREAS, the Custodian agrees to accept such delegation with
respect to Assets, including those held by Foreign Custodians in the
Selected Countries as set forth in jurisdictions listed on Appendix C as
set forth in Article II;
WHEREAS, the Custodian agrees to perform the function of a Primary
Custodian under Rule 17f-7;
NOW THEREFORE, the Company and the Custodian agree as follows:
DEFINITIONS
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The following words and phrases, unless the context requires otherwise,
shall have the following meanings:
1. "Act": the Investment Company Act of 1940 and the Rules and
Regulations thereunder, all as amended from time to time.
References to a Rule herein are references to a Rule under the
Act unless otherwise specified.
2. "Agreement": this agreement and any amendments.
3. "Assets": any of the Funds' investments, including foreign
currencies and investments for which the primary market is
outside the United States, and such cash and cash equivalents as
are reasonably necessary to effect the Funds' transactions in
such investments.
4. "Authorized Person": the Chairman of the Company Board, its
President, and any Vice President, Secretary, Treasurer or any
other person, whether or not any such person is an officer or
employee of the Company, duly authorized by the Board to add or
delete jurisdictions pursuant to Article II and to give
Instructions on behalf of the Company which is listed in the
Certificate annexed hereto as Appendix A or such other
Certificate as may be received by the Custodian from time to
time.
5. "Board": the Board of Directors (or the body authorized to
exercise authority similar to that of the board of directors of
a corporation) of the Company.
6. "Book-Entry System": the Federal Reserve/Treasury book-entry
system for United States and federal agency Securities, its
successor or successors and its nominee or nominees.
7. "Business Day": any day on which the Funds, the Custodian, the
Book-Entry System and appropriate clearing corporation(s) are
open for business.
8. "Certificate": any notice, instruction or other instrument in
writing, authorized or required by this Agreement to be given to
the Custodian, which is actually received by the Custodian and
signed on behalf of the Company by an Authorized Person or
Persons designated by the Board to issue a Certificate.
9. "Country Risk": means all factors reasonably related to the
systemic risk of holding assets in a particular country
including, but not limited to, such country's financial
infrastructure (including any Securities Depositories operating
in such country), prevailing custody and settlement practices
and laws applicable to the safekeeping and recovery of Assets
held in custody.
10. "Eligible Securities Depository": the meaning of the term set
forth in Rule 17f-7(b)(1) of the Act.
11. "Foreign Custodian": (a) a banking institution or trust company,
incorporated or organized under the laws of a country other than
the United States, that is regulated as such by the country's
government or an agency of the country's government; (b) a
majority-owned direct or indirect subsidiary of a U.S. Bank or
bank-holding company; or (c) any entity other than a Securities
Depository with respect to which exemptive or no-action relief
has been granted by the Securities and Exchange Commission
authorizing it to act as a Custodian for registered investment
companies. For the avoidance of doubt, the term "Foreign
Custodian" shall not include Euroclear, Clearstream, Bank One or
any other transnational system for the central handling
(including on a book-entry basis) of securities transactions
regardless of whether or not such entities or their service
providers are acting in a custodial capacity with respect to
Assets, Securities or other property of the Company.
12. "Foreign Custody Manager" the meaning set forth in Rule
17f-5(a)(3).
13. "Instructions": directions and instructions to the Custodian
from an Authorized Person in writing by facsimile or electronic
transmission subject to the Custodian's practices or any other
method specifically agreed upon, provided that the Custodian
may, in its discretion, accept oral directions and instructions
from an individual it reasonably believes to be an Authorized
Person and may require confirmation in writing.
14. "Primary Custodian": the meaning set forth in Rule 17f-7(b)(2)
of the Act.
15. "Prospectus": the Fund' current prospectus and statement of
additional information relating to the registration of the
Funds' Shares under the Securities Act of 1933, as amended. .
16. "Risk Analysis": the analysis required under Rule 17f-7(a)
(1)(i)(A).
17. "Rules 17f-4, 17f-5 and 17f-7": such Rules as promulgated under
Section 17(f) of the Act, as such rules (and any successor rules
or regulations) may be amended from time to time.
18. "Security" or "Securities": bonds, debentures, notes, stocks,
shares, evidences of indebtedness, and other securities,
commodities, interests and investments from time to time owned
by the Funds.
19. "Securities Depository": a system for the central handling of
securities as defined in Rule 17f-4.
20. "Selected Countries": the jurisdictions listed on Appendix C as
such may be amended from time to time in accordance with Article II.
21. "Shares": shares of the Funds, however designated.
All uses of the word "Funds" or the phrase "a Fund" shall refer to
the Fund and all verbs and other parts of speech shall be conformed thereto.
ARTICLE I
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CUSTODY PROVISIONS
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1. Appointment of Custodian. The Board appoints the Custodian, and the
Custodian accepts appointment as custodian of all the Securities and monies
at the time owned by or in the possession of the Fund during the period of
this Agreement.
2. Custody of Cash and Securities.
(a) Receipt and Holding of Assets. The Fund will deliver or cause
to be delivered to the Custodian all Securities and monies
owned by each at any time during the period of this Custody
Agreement. The Custodian will not be responsible for such
Securities and monies until actually received. The Board
specifically authorizes the Custodian to hold Securities,
Assets or other property of the Fund with any domestic
subcustodian or Securities Depository or with any Foreign
Custodian or Eligible Securities Depository in any Selected
Country as provided in Article II. Securities and monies of
the Funds deposited in a Securities Depository or Eligible
Securities Depository will be reflected in an account or
accounts which include only assets held by the Custodian or a
Foreign Custodian for its customers.
(b) Disbursements of Cash and Delivery of Securities. The
Custodian shall disburse cash or deliver out Securities only
for the purposes listed below. Instructions must specify or
evidence the purpose for which any transaction is to be made
and the Company shall be solely responsible to assure that
Instructions are in accord with any limitations or
restrictions applicable to the Funds.
(1) In payment for Securities purchased for a Fund;
(2) In payment of dividends or distributions with respect
to Shares;
(3) In payment for Shares which have been redeemed by a Fund;
(4) In payment of taxes;
(5) When Securities are called, redeemed, retired, or
otherwise become payable;
(6) In exchange for or upon conversion into other
securities alone or other securities and cash pursuant
to any plan or merger, consolidation, reorganization,
recapitalization or readjustment;
(7) Upon conversion of Securities pursuant to their terms
into other securities;
(8) Upon exercise of subscription, purchase or other
similar rights.
(9) For the payment of interest, management or supervisory
fees, distributions or operating expenses;
(10) In payment of fees and in reimbursement of the expenses
and liabilities of the Custodian attributable to a Fund;
(11) In connection with any borrowings by a Fund or short
sales of securities requiring a pledge of Securities,
but only against receipt of amounts borrowed;
(12) In connection with any loans, but only against receipt
of adequate collateral as specified in Instructions
which shall reflect any restrictions applicable to
a Fund.
(13) For the purpose of redeeming Shares of the capital
stock of a Fund and the delivery to, or the crediting
to the account of, the Custodian or the Company's
transfer agent, such Shares to be purchased or
redeemed;
(14) For the purpose of redeeming in kind Shares of a Fund
against delivery to the Bank, its Subcustodian or the
's Company's transfer agent of such Shares to be so
redeemed;
(15) For delivery in accordance with the provisions of any
agreement among a Fund, the Custodian and a
broker-dealer registered under the Securities Exchange
Act of 1934 (the "Exchange Act") and a member of the
National Association of Securities Dealers, Inc.
("NASD"), relating to compliance with the rules of the
Options Clearing Corporation and of any registered
national securities exchange, or of any similar
organization or organizations, regarding escrow or
other arrangements in connection with transactions by a
Fund. The Custodian will act only in accordance with
Instructions in the delivery of Securities to be held
in escrow and will have no responsibility or liability
for any such Securities which are not returned promptly
when due other than to make proper requests for such
return;
(16) For spot or forward foreign exchange transactions to
facilitate security trading, receipt of income from
Securities or related transactions;
(17) Upon the termination of this Agreement; and
(18) For other proper purposes as may be specified in
Instructions issued by an officer of the Company which
shall include a statement of the purpose for which the
delivery or payment is to be made, the amount of the
payment or specific Securities to be delivered, the
name of the person or persons to whom delivery or
payment is to be made, and a Certificate stating that
the purpose is a proper purpose under the instruments
governing the Company
(c) Actions Which May be Taken Without Instructions. Unless an
Instruction to the contrary is received, the Custodian shall:
(1) Collect all income due or payable, provided that the
Custodian shall not be responsible for any failure not
attributable to itself to receive payment of (or late
payment of) distributions or other payments with
respect to Securities or other property held in the
account;
(2) Present for payment and collect the amount payable upon
all Securities which may mature or be called, redeemed,
retired or otherwise become payable. Notwithstanding
the foregoing, the Custodian shall have no
responsibility to the Company for monitoring or
ascertaining any call, redemption or retirement dates
with respect to put bonds or similar instruments that
are owned by Fund and held by the Custodian or its
nominees where such dates are not published in sources
routinely used by the Custodian. Nor shall the
Custodian have any responsibility or liability to the
Company for any loss by a Fund for any missed payments
or other defaults resulting therefrom with respect to
put bonds or similar instruments unless the Custodian
received timely notification from the Fund specifying
the time, place and manner for the presentment of any
such put bond owned by the Fund and held by the
Custodian or its nominee. The Custodian shall not be
responsible and assumes no liability for the accuracy
or completeness of any notification the Custodian may
furnish to a Fund with respect to put bonds or similar
instruments;
(3) Surrender Securities in temporary form for definitive
Securities;
(4) Hold directly, or through a Securities Depository with
respect to Securities therein deposited, for the
account of a Fund all rights and similar Securities
issued with respect to any Securities held by the
Custodian hereunder for a Fund;
(5) Submit or cause to be submitted to the a Fund or its
investment adviser as designated by a Fund information
actually received by the Custodian regarding ownership
rights pertaining to property held for a Fund;
(6) Deliver or cause to be delivered any Securities held
for a Fund in exchange for other Securities or cash
issued or paid in connection with the liquidation,
reorganization, refinancing, merger, consolidation or
recapitalization of any corporation, or the exercise of
any conversion privilege;
(7) Deliver or cause to be delivered any Securities held
for a Fund to any protective committee, reorganization
committee or other person in connection with the
reorganization, refinancing, merger, consolidation or
recapitalization or sale of assets of any corporation,
and receive and hold under the terms of this Agreement
such certificates of deposit, interim receipts or other
instruments or documents as may be issued to it to
evidence such delivery;
(8) Make or cause to be made such transfers or exchanges of
the assets specifically allocated to a Fund and take
such other steps as shall be stated in Instructions to
be for the purpose of effectuating any duly authorized
plan of liquidation, reorganization, merger,
consolidation or recapitalization of a Fund;
(9) Deliver Securities upon the receipt of payment in
connection with any repurchase agreement related to
such Securities entered into by a Fund;
(10) Deliver Securities owned by a Fund to the issuer
thereof or its agent when such Securities are called,
redeemed, retired or otherwise become payable;
provided, however, that in any such case the cash or
other consideration is to be delivered to the
Custodian. Notwithstanding the foregoing, the Custodian
shall have no responsibility to the Funds for
monitoring or ascertaining any call, redemption or
retirement dates with respect to the put bonds or
similar instruments that are owned by a Fund and held
by the Custodian or its nominee where such dates are
not published in sources routinely used by the
Custodian. Nor shall the Custodian have any
responsibility or liability to the Company for any loss
by a Fund for any missed payment or other default
resulting therefrom with respect to put bonds or
similar instruments unless the Custodian received
timely notification from the Fund specifying the time,
place and manner for the presentment of any such put
bond owned by the Fund and held by the Custodian or its
nominee. The Custodian shall not be responsible and
assumes no liability to the Company for the accuracy or
completeness of any notification the Custodian may
furnish to the Funds with respect to put bonds or
similar investments;
(11) Endorse and collect all checks, drafts or other orders
for the payment of money received by the Custodian for
the account of the Funds
(12) Execute any and all documents, agreements or other
instruments as may be necessary or desirable for the
accomplishment of the purposes of this Agreement.
(d) Confirmation and Statements. Promptly after the close of
business on each day, the Custodian shall furnish the Company
with confirmations and a summary of all transfers to or from
the account of the Funds during the day. Where securities
purchased by a Fund are in a fungible bulk of securities
registered in the name of the Custodian (or its nominee) or
shown on the Custodian's account on the books of a Securities
Depository, the Custodian shall by book-entry or otherwise
identify the quantity of those securities belonging to the
Fund. At least monthly, the Custodian shall furnish the Funds
with a detailed statement of the Securities and monies held
for the Funds under this Custody Agreement.
(e) Registration of Securities. The Custodian is authorized to
hold all Securities, Assets, or other property of the Funds
in nominee name, in bearer form or in book-entry form. The
Custodian may register any Securities, Assets or other
property of a Fund in the name of the Fund, in the name of
the Custodian, any domestic subcustodian, or Foreign
Custodian, in the name of any duly appointed registered
nominee of such entity, or in the name of a Securities
Depository or its successor or successors, or its nominee or
nominees. Each Fund agrees to furnish to the Custodian
appropriate instruments to enable the Custodian to hold or
deliver in proper form for transfer, or to register in the
name of its registered nominee or in the name of a Securities
Depository, any Securities which it may hold for the account
of a Fund and which may from time to time be registered in
the name of a Fund.
(f) Segregated Accounts. Upon receipt of Instructions, the
Custodian will, from time to time establish segregated
accounts on behalf of the Funds to hold and deal with
specified assets as shall be directed.
3. Settlement of Fund Transactions.
(a) Customary Practices. Settlement of transactions may be
effected in accordance with trading and
processing practices customary in the jurisdiction or market
where the transaction occurs. The Company acknowledges that
this may, in certain circumstances, require the delivery of
cash or Securities (or other property) without the concurrent
receipt of Securities (or other property) or cash. In such
circumstances, the Custodian shall have no responsibility for
nonreceipt of payments (or late payment) or nondelivery of
Securities or other property (or late delivery) by the
counterparty unless it has breached its standard of care
under this Agreement.
(b) Contractual Income. Unless the parties agree to the contrary,
the Custodian shall credit the Funds, in accordance with the
Custodian's standard operating procedure, with income and
maturity proceeds on securities on contractual payment date
net of any taxes or upon actual receipt. To the extent the
Custodian credits income on contractual payment date, the
Custodian may reverse such accounting entries with back value
to the contractual payment date if the Custodian reasonably
believes that such amount will not be received.
(c) Contractual Settlement. Unless the parties agree to the
contrary, the Custodian will attend to the settlement of
securities transactions in accordance with the Custodian's
standard operating procedure, on the basis of either
contractual settlement date accounting or actual settlement
date accounting. To the extent the Custodian settles certain
securities transactions on the basis of contractual
settlement date accounting, the Custodian may reverse with
back value to the contractual settlement date any entry
relating to such contractual settlement if the Custodian
reasonably believes that such amount will not be received.
4. Lending of Securities. The Custodian may lend the assets of the Funds
in accordance with the terms and conditions of a separate securities
lending agreement.
5. Persons Having Access to Assets of the Fund.
(a) The Custodian shall not permit any trustee or agent of the
Company, or any officer, director, employee or agent of the
Funds' investment adviser, of any sub-investment adviser of
the Funds, or of the Funds' administrator, to have physical
access to the Assets held by the Custodian or be authorized
or permitted to withdraw any Assets nor shall the Custodian
deliver any Assets to any such person.
The Custodian shall not permit any officer, director,
employee or agent of the Custodian who holds any similar
position with the Funds' investment adviser, with any
sub-investment adviser of the Funds or with the Funds'
administrator to have access to the Assets.
(b) Nothing in this Section 5 shall prohibit any duly authorized
officer, employee or agent of the Company, or a duly
authorized officer, director, employee or agent of the
investment adviser, of any sub-investment adviser of the
Funds' or of the Funds' administrator, from giving
Instructions to the Custodian or executing a Certificate so
long as it does not result in delivery of or access to Assets
of the Fund prohibited by paragraph (a) of this Section 5.
6. Standard of Care; Scope of Custodial Responsibilities.
(a) Standard of Care. Custodian shall be required to exercise
reasonable care with respect to its duties under this
Agreement unless otherwise provided.
(1) Notwithstanding any other provision of this Custody
Agreement, the Custodian shall not be liable for any
loss or damage, including counsel fees, resulting from
its action or omission to act or otherwise, except for
any such loss or damage arising out of the negligence
or willful misconduct of the Custodian.
(2) The Custodian may, with respect to questions of law,
apply for and obtain the advice and opinion of counsel
to the Company or of its own counsel, at the expense of
the Company, and shall be fully protected with respect
to anything done or omitted by it in good faith in
conformity with such advice or opinion.
(b) Scope of Duties. Without limiting the generality of the
foregoing, the Custodian shall be under no duty or obligation
to inquire into, and shall not be liable for:
(1) The acts or omissions of any other agent appointed
pursuant to Instructions of a Fund or its investment
adviser including, but not limited to, any
broker-dealer or other entity to hold any Securities or
other property of the Fund as collateral or otherwise
pursuant to any investment strategy.
(2) The validity of the issue of any Securities purchased
by a Fund, the legality of the purchase thereof, or the
propriety of the amount paid therefor;
(3) The legality of the sale of any Securities by a Fund or
the propriety of the amount for which the same are
sold;
(4) The legality of the issue or sale of any Shares, or the
sufficiency of the amount to be received therefor;
(5) The legality of the redemption of any Shares, or the
propriety of the amount to be paid therefor;
(6) The legality of the declaration or payment of any
distribution of a Fund;
(7) The legality of any borrowing for temporary
administrative or emergency purposes.
(c) No Liability Until Receipt. The Custodian shall not be liable
for, or considered to be the Custodian of, any money, whether
or not represented by any check, draft, or other instrument
for the payment of money, received by it on behalf of a Fund
until the Custodian actually receives and collects such
money.
(d) Amounts Due from Transfer Agent. The Custodian shall not be
required to effect collection of any amount due to a Fund
from the Fund's transfer agent nor be required to cause
payment or distribution by such transfer agent of any amount
paid by the Custodian to the transfer agent.
(e) Collection Where Payment Refused. The Custodian shall not be
required to take action to effect collection of any amount,
if the Securities upon which such amount is payable are in
default, or if payment is refused after due demand or
presentation, unless and until it shall be directed to take
such action and it shall be assured to its satisfaction of
reimbursement of its related costs and expenses.
(f) No Duty to Ascertain Authority. The Custodian shall not be
under any duty or obligation to ascertain whether any
Securities at any time delivered to or held by it for a Fund
are such as may properly be held by the Fund under the
provisions of its governing instruments or Prospectus.
(g) Reliance on Instructions. The Custodian shall be entitled to
rely upon any Instruction, notice or other instrument in
writing received by the Custodian and reasonably believed by
the Custodian to be genuine and to be signed by an Authorized
Person of the Company. Where the Custodian is issued
Instructions orally, the Company acknowledges that if written
confirmation is requested, the validity of the transactions
or enforceability of the transactions authorized by the
Company shall not be affected if such confirmation is not
received or is contrary to oral Instructions given. The
Custodian shall be under no duty to question any direction of
an Authorized Person to review any property held in the
account, to make any suggestions with respect to the
investment of the assets in the account, or to evaluate or
question the performance of any Authorized Person. The
Custodian shall not be responsible or liable for any
diminution of value of any securities or other property held
by the Custodian.
7. Appointment of Subcustodians. The Custodian is hereby authorized to
appoint one or more domestic subcustodians (which may be an affiliate of
the Custodian) qualified under the Act to hold Securities and monies at any
time owned by the Funds; provided however that the appointment of any such
sub-custodian shall not relieve the Custodian of its responsibilities or
liabilities hereunder. The Custodian is also hereby authorized when acting
pursuant to Instructions to: 1) place assets with any Foreign Custodians
located in a jurisdiction which is not a Selected Country; and 2) place
assets with a broker or other agent as subcustodian in connection with
futures, options, short selling or other transactions which in the case of
transactions subject to Rule 17f-6 would be done in compliance with Rule
17f-6. When acting pursuant to such Instructions, the Custodian shall not
be liable for the acts or omissions of any subcustodian so appointed.
8. Overdraft Facility and Security for Payment. In the event that the
Custodian receives Instructions to make payments or transfers of monies on
behalf of a Fund for which there would be, at the close of business on the
date of such payment or transfer, insufficient monies held by the Custodian
on behalf of the Fund, the Custodian may, in its sole discretion, provide
an overdraft (an "Overdraft") to the Fund in an amount sufficient to allow
the completion of such payment or transfer. Any Overdraft provided
hereunder: (a) shall be payable on the next Business Day, unless otherwise
agreed by the Fund and the Custodian; and (b) shall accrue interest from
the date of the Overdraft to the date of payment in full by the Fund at a
rate agreed upon from time to time, by the Custodian and the Fund or, in
the absence of specific agreement, by such rate as charged to other
customers of Custodian under procedures uniformly applied. The Custodian
and the Company acknowledge that the purpose of such Overdraft is to
temporarily finance the purchase of Securities for prompt delivery in
accordance with the terms hereof, to meet unanticipated or unusual
redemptions, to allow the settlement of foreign exchange contracts or to
meet other unanticipated Fund expenses. The Custodian shall promptly notify
the Funds (an "Overdraft Notice") of any Overdraft. To secure payment of
any Overdraft, each Fund hereby grants to the Custodian a continuing
security interest in and right of setoff against the Securities and cash in
the Fund's account from time to time in the full amount of such Overdraft.
Should the a Fund fail to pay promptly any amounts owed hereunder, the
Custodian shall be entitled to use available cash in the Fund's account and
to liquidate Securities in the account as necessary to meet the Fund's
obligations under the Overdraft. In any such case, and without limiting the
foregoing, the Custodian shall be entitled to take such other actions(s) or
exercise such other options, powers and rights as the Custodian now or
hereafter has as a secured creditor under the Massachusetts Uniform
Commercial Code or any other applicable law.
9. Tax Obligations. For purposes of this Agreement, "Tax Obligations" shall
mean taxes, withholding, certification and reporting requirements, claims
for exemptions or refund, interest, penalties, additions to tax and other
related expenses. To the extent that the Custodian has received relevant
and necessary information with respect to a Fund, the Custodian shall
perform the following services with respect to Tax Obligations:
a. the Custodian shall file claims for exemptions or refunds with
respect to withheld foreign (non-U.S.) taxes in instances in which such
claims are appropriate;
b. the Custodian shall withhold appropriate amounts, as required by
U.S. tax laws, with respect to amounts received on behalf of nonresident
aliens; and
c. the Custodian shall provide to the Fund or the Authorized Person
such information received by the Custodian which could, in the Custodian's
reasonable belief, assist the Fund or the Authorized Person in the
submission of any reports or returns with respect to Tax Obligations. The
Fund shall inform the Custodian in writing as to which party or parties
shall receive information from the Custodian.
The Custodian shall provide such other services with respect to Tax
Obligations, including preparation and filing of tax returns and reports
and payment of amounts due (to the extent funded), as requested by the Fund
and agreed to by the Custodian in writing. The Custodian shall have no
independent obligation to determine the existence of any information with
respect to, or the extent of, any Tax Obligations now or hereafter imposed
on the Fund by any taxing authority. Except as specifically provided herein
or agreed to in writing by the Custodian, the Custodian shall have no
obligations or liability with respect to Tax Obligations, including,
without limitation, any obligation to file or submit returns or reports
with any taxing authorities.
ARTICLE II
----------
FOREIGN CUSTODY MANAGER SERVICES
--------------------------------
1. Delegation. Pursuant to Rule 17f-5(b) the Board delegates to the
Custodian, and the Custodian hereby agrees to accept responsibility as the
Company's Foreign Custody Manager for selecting, contracting with and
monitoring Foreign Custodians in those Selected Countries set forth in
Appendix C in accordance with Rule 17f-5(c).
2. Changes to Appendix C. Appendix C may be amended by from time to time to
add or delete jurisdictions by written agreement signed by an Authorized
Person of the Company and the Custodian, but the Custodian reserves the
right to delete jurisdictions upon reasonable notice to the Company.
3. Reports to Board. The Custodian shall provide written reports notifying
the Board of the placement of Assets with a particular Foreign Custodian
and of any material change in a Fund's foreign custody arrangements. Such
reports shall be provided to the Board quarterly, except as otherwise
agreed to by the Custodian and the Company.
4. Monitoring System. In each case in which the Custodian as Foreign
Custody Manager has exercised delegated authority to place Assets with a
Foreign Custodian, the Custodian shall establish a system, to re-assess or
re-evaluate such Foreign Custodians, at least annually in accordance with
Rule 17f-5(c)(3) and to notify the Company immediately if any such Foreign
Custodian is determined by the Custodian to no longer satisfy the
requirements of Rule 17f-5 (c).
5. Standard of Care. In exercising the delegated authority under this
Article II of the Agreement, the Custodian agrees to exercise reasonable
care, prudence and diligence such as a person having responsibility for the
safekeeping of the Assets would exercise in like circumstances. Contracts
with Foreign Custodians shall be in writing and shall provide for
reasonable care for Assets based on the standards applicable to Foreign
Custodians in the Selected Country and shall comply with the other
requirements of Rule 17f-5(c)(2). In making this determination, the
Custodian shall consider all pertinent factors including those set forth in
Rule 17f-5(c)(1). The Custodian shall be liable for the acts or omissions
for a Foreign Custodian to the same extent as set forth herein with respect
to domestic subcustodians, provided, however, that except as may arise from
the negligence or willful misconduct of the Custodian or a domestic
custodian shall be without liability in respect of Country Risk.
6. Use of Securities Depositories. In exercising its delegated authority,
the Custodian may assume, unless instructed in writing to the contrary by
an Authorized Person, that the Board or the Funds' investment adviser has
determined, pursuant to Rule 17f-7, to place and maintain foreign assets
with any Securities Depository as to which the Custodian has provided the
Company with a Risk Analysis.
ARTICLE III
-----------
Information Services
--------------------
1. Risk Analysis. The Custodian will provide the Company with a Risk
Analysis with respect to Securities Depositories operating in the countries
listed in Appendix C. If the Custodian is unable to provide a Risk Analysis
with respect to a particular Securities Depository, it will promptly notify
the Fund Company. Each Risk Analysis shall indicate whether the particular
Securities Depository has been determined by the Custodian, in exercise of
its standard of care, to be an Eligible Securities Depository. If a new
Securities Depository commences operation in one of the Appendix C
countries, the Custodian will provide the Company with a Risk Analysis
within a reasonably practicable time after such Securities Depository
becomes operational. If a new country is added to Appendix C, the Custodian
will provide the Company with a Risk Analysis with respect to each
Securities Depository in that country within a reasonably practicable time
after the addition of the country to Appendix C.
2. Monitoring. The Custodian will monitor the custody risks associated with
maintaining assets with each Securities Depository for which it has
provided the Company with a Risk Analysis as required under Rule 17f-7. The
Custodian will promptly notify the Company or Funds investment adviser of
any material change in these risks with respect to any Eligible Securities
Depository.
3. Use of Agents. The Custodian may employ agents, including, but not
limited to Foreign Custodians, to perform its responsibilities under
Sections 1 and 2 above.
4. Exercise of Reasonable Care. The Custodian will exercise reasonable
care, prudence, and diligence in performing its responsibilities under this
Article III. With respect to the Risk Analyses provided or monitoring
performed by an agent, the Custodian will exercise reasonable care in the
selection of such agent, and shall be entitled to rely upon information
provided by agents so selected in the performance of its duties and
responsibilities under this Article III unless the Custodian knows or
should have know such information to be incorrect, incomplete or
misleading.
5. Liabilities and Warranties. While the Custodian will take reasonable
precautions to ensure that information provided is accurate, the Custodian
shall have no liability with respect to information provided to it by third
parties unless the Custodian knows or should have known such information to
be incorrect, incomplete or misleading. Due to the nature and source of
information, and the necessity of relying on various information sources,
most of which are external to the Custodian, the Custodian shall have no
liability for direct or indirect use of such information
ARTICLE IV
----------
GENERAL PROVISIONS
------------------
1. Compensation.
(a) The Company will compensate the Custodian for its
services rendered under this Agreement in accordance with
the fees set forth in a separate Fee Schedule which
schedule may be modified by the Custodian upon not less
than ninety days prior written notice to the Company.
(b) The Custodian will xxxx the Company as soon as
practicable after the end of each calendar month. The
Company will promptly pay to the Custodian the amount of
such billing.
(c) If not paid directly or timely by the Company, the
Custodian may charge against assets held on behalf of a
Fund compensation and any expenses incurred by the
Custodian in the performance of its duties for such Fund
pursuant to this Agreement. The Custodian shall also be
entitled to charge against assets of a Fund the amount of
any loss, damage, liability or expense incurred with
respect to such Fund, including counsel fees, for which
it shall be entitled to reimbursement under the
provisions of this Agreement. The expenses which the
Custodian may charge include, but are not limited to, the
expenses of domestic subcustodians and Foreign Custodians
incurred in settling transactions.
2. Insolvency of Foreign Custodians. The Custodian shall be responsible for
losses or damages suffered by a Fund arising as a result of the insolvency
of a Foreign Custodian only to the extent that the Custodian failed to
comply with the standard of care set forth in Article II with respect to
the selection and monitoring of such Foreign Custodian.
3. Liability for Depositories. The Custodian shall not be responsible for
any losses resulting from the deposit or maintenance of Securities, Assets
or other property of a Fund with a Securities Depository.
4. Damages. Under no circumstances shall the Custodian be liable for any
indirect, consequential or special damages with respect to its role as
Foreign Custody Manager, Custodian or information vendor.
5. Indemnification; Liability of the Company.
(a) The Company shall indemnify and hold the Custodian
harmless from all liability and expense, including
reasonable counsel fees and expenses, arising out of the
performance of the Custodian's obligations under this
Agreement except as a result of the Custodian's
negligence or willful misconduct.
(b) The Company and the Custodian agree that the obligations
of the Company under this Agreement shall not be binding
upon any of the Directors, Trustees, shareholders,
nominees, officers, employees or agents, whether past,
present or future, of the Company, individually, but are
binding only upon the assets and property of the Funds.
6. Force Majeure. Notwithstanding anything in this Agreement to the
contrary, the Custodian shall not be liable for any losses resulting from
or caused by events or circumstances beyond its reasonable control,
including, but not limited to, losses resulting from nationalization,
strikes, expropriation, devaluation, revaluation, confiscation, seizure,
cancellation, destruction or similar action by any governmental authority,
de facto or de jure; or enactment, promulgation, imposition or enforcement
by any such governmental authority of currency restrictions, exchange
controls, taxes, levies or other charges affecting the Funds' property; or
the breakdown, failure or malfunction of any utilities or public
telecommunications systems; or any order or regulation of any banking or
securities industry including changes in market rules and market conditions
affecting the execution or settlement of transactions; or acts of war,
terrorism, insurrection or revolution; or any other similar event.
7. Termination.
(a) Either party may terminate this Agreement by giving the
other party at least sixty (60) days notice in writing,
specifying the date of such termination.
(b) In the event notice of termination is given by the
Custodian, the Company shall, on or before the
termination date, deliver to the Custodian a Certificate
evidencing the vote of the Board designating a successor
custodian. In the absence of such designation, the
Custodian may designate a successor custodian, which
shall be a person qualified to so act under the Act or
the Company. If the Company fails to designate a
successor custodian, the Company shall, upon the date
specified in the notice of termination, and upon the
delivery by the Custodian of all Securities and monies
then owned by the Funds, be deemed to be its own
custodian and the Custodian shall thereby be relieved of
all duties and responsibilities under this Agreement
other than the duty with respect to Securities held in
the Book-Entry System or any Securities Depository which
cannot be delivered to the Company.
(c) Upon termination of the Agreement, the Custodian shall,
upon receipt of a notice of acceptance by the successor
custodian, deliver to the successor all Securities and
monies then held by the Custodian on behalf of the Funds,
after deducting all fees, expenses and other amounts owed
to the Custodian
(d) In the event of a dispute following the termination of
this Agreement, all relevant provisions shall be deemed
to continue to apply to the obligations and liabilities
of the parties.
8. Inspection of Books and Records. The books and records of the Custodian
shall be open to inspection and audit at reasonable times by officers and
auditors employed by the Company at its own expense and with prior written
notice to the Custodian, and by the appropriate employees of the Securities
and Exchange Commission.
9. Miscellaneous.
(a) Appendix A is a Certificate signed by the Secretary of
the Fund setting forth the names and the signatures of
Authorized Persons. The Company shall furnish a new
Certificate when the list of Authorized Persons is
changed in any way. Until a new certification is
received, the Custodian shall be fully protected in
acting upon Instructions from Authorized Persons as set
forth in the last delivered Certificate.
(b) Any required written notice or other instrument shall be
sufficiently given if addressed to the Custodian or the
Company as the case may be and delivered to it at its
offices at:
The Custodian:
Boston Safe Deposit and Trust Company
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: ____________________________
The Company
The Gabelli Utility Trust
Xxx Xxxxxxxxx Xxxxxx
Xxx, XX 00000
Attn: General Counsel________________
or at such other place as the parties may from time to time designate to
the other in writing.
(c) The Custodian shall provide the Company at such time as
the Company may reasonably request with reports by
independent public accountants and procedures for safe
guarding Assets in sufficient scope and detail to provide
reasonable assurance that any material inadequacies would
be disclosed.
(d) This Agreement may not be amended or modified except by a
written agreement executed by both parties.
(e) 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 by the Company without the written consent
of the Custodian, or by the Custodian without the written
consent of the Company authorized or approved by a vote
of the Board, provided, however, that the Custodian may
assign the Agreement or any function thereof to any
corporation or entity which directly or indirectly is
controlled by, or is under common control with, the
Custodian and any other attempted assignment without
written consent shall be null and void.
(f) Nothing in this Agreement shall give or be construed to
give or confer upon any third party any rights hereunder.
(g) The Custodian represents that it is a U.S. Bank within
the meaning of paragraph (a)(7) of Rule 17f-5.
(h) The Company acknowledges and agrees that, except as
expressly set forth in this Agreement, the Company is
solely responsible to assure that the maintenance of the
Funds' Securities and cash hereunder complies with
applicable laws and regulations, including without
limitation the Act and applicable interpretations thereof
or exemptions therefrom. The Company represents that it
has determined that it is reasonable to rely on the
Custodian to perform the responsibilities delegated
pursuant to this Agreement.
(i) This Agreement shall be construed in accordance with the
laws of the Commonwealth of Massachusetts.
(j) The captions of the 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.
(k) Each party represents to the other that it has all
necessary power and authority, and has obtained any
consent or approval necessary to permit it, to enter into
and perform this Agreement and that this Agreement does
not violate, give rise to a default or right of
termination under or otherwise conflict with any
applicable law, regulation, ruling, decree or other
governmental authorization or any contract to which it is
a party or by which any of its assets is bound.
(l) 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.
(m) SEC Rule 14b-2 requires banks which hold securities for
the account of customers to respond to requests by
issuers of securities for the names, address and holdings
of beneficial owners of securities of that issuer held by
the bank unless the beneficial owner has expressly
objected to disclosure of this information. In order to
comply with the rule, the Custodian needs the Company to
indicate whether it authorizes the Custodian to provide a
Fund's name, address, and share position to requesting
companies whose securities the Fund owns. If a fund tells
the Custodian "no", the Custodian will not provide this
information to requesting companies.
If a Fund tells the Custodian "yes" or does not check either "yes"
or "no" below, the Custodian is required by the rule to treat the
Fund as consenting to disclosure of this information for all
securities owned by the Fund or any funds or accounts established
by the Fund. For the Funds protection, the Rule prohibits the
requesting company from using a Funds' name and address for any
purpose other than corporate communications. Please indicate below
whether the Company consents or objects by checking one of the
alternatives below.
YES [ ] The Custodian is authorized to release the Funds' name,
address, and share positions.
NO [X] The Custodian is not authorized to release the Funds'
name, address, and share positions.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective representatives duly authorized as of the day
and year first above written.
THE GABELLI UTILITY TRUST
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
BOSTON SAFE DEPOSIT AND TRUST COMPANY
By: /s/ Xxxxxxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: First Vice President
APPENDIX A
----------
LIST OF AUTHORIZED PERSONS
--------------------------
The Gabelli Utility Trust, a business trust organized under the
laws of the State of Delaware does hereby certify that:
The following individuals have been duly authorized as Authorized
Persons to give Instructions on behalf of the Company Funds and the
specimen signatures set forth opposite their respective names are their
true and correct signatures:
Name Signature
---- ---------
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
By:
-----------------------------
Secretary
Dated:
APPENDIX C
----------
Selected Countries
------------------
Argentina Luxembourg
Australia Malaysia
Austria Mauritius
Bangladesh Mexico
Belgium Morocco
Bermuda Namibia
Bolivia The Netherlands
Botswana New Zealand
Brazil Norway
Canada Pakistan
Chile Panama
China/Shenzhen Peru
China The Philippines
Columbia Poland
Costa Rica* Portugal
Croatia Romania
Czech Republic Russia*
Denmark Singapore
Ecuador Slovakia
Egypt Slovenia
Estonia South Africa
Finland Spain
France Sri Lanka
Germany Sweden
Ghana Switzerland
Greece Taiwan
Hong Kong Thailand
Hungray Trinidad*
India Tunisia*
Indonesia Turkey
Ireland United Kingdom
Israel Uruguay
Italy Venezuela
Japan Vietnam
Jordan Zambia
Kenya Zimbabwe
Korea, Republic of
"*Note, Custodian will not act as a Foreign Custody Manager with respect to
assets held in this country. Holding assets and use of Mellon's usual
subcustodian in this country is subject to Instructions by the Company and
its execution of a separate letter-agreement pertaining to custody and
market risks."
APPENDIX D
----------
ANCILLARY INFORMATION SERVICES AGREEMENT
----------------------------------------
Until the Custodian provides a Risk Analysis pursuant to Article
III of the Agreement with respect to a Securities Depositories operating in
such country a particular country as set forth on Appendix C, the following
sets forth our agreement with respect to the delivery of certain
information to the Board or its agents as requested by the Board from time
to time. These terms shall control over the provisions of Article III of
this Agreement but shall cease to apply as to any country for which
Custodian provides a Risk Analysis for one or more Securities Depositories
operating therein. Otherwise, unless continued as provided below, these
provisions shall expire on July 2, 2001.
After expiration, the information set forth in Sections 2, A and B
below may be provided as agreed upon from time to time in writing between
the Company and the Custodian subject to Section 3 hereof.
1. Provision of Information. In accordance with the provisions of this
Information Services Agreement, the Custodian agrees to provide to the
Board, or at the direction of the Board, the Funds' investment advisers,
the information set forth in Section 2, below, with respect to Foreign
Custodians and Securities Depositories which hold Securities, Assets, or
other property of the Fund and the systems and environment for securities
processing in the jurisdiction in which such Foreign Custodians or
Securities Depositories are located. The Custodian shall provide only that
portion of such information as is reasonably available to it.
2. Information to be Provided.
A. Country Information
o Settlement Environment
o Depository
o Settlement Period
o Trading
o Security Registration
o Currency
o Foreign Investment Restrictions
o Entitlements
o Proxy Voting
o Foreign Taxation
B. Subcustodian Information
o Financial Information
o Regulator
o External Auditor
o How Securities are Held
o Operational Capabilities
o Insurance Coverage
C. Depository Information (if applicable to the Country)
o Name
o Information relative to Determining Compulsory or Voluntary
Status of the Facility
o Type of Entity
o Ownership Structure
o Operating History
o Eligible Instruments
o Security Form
o Financial Data
o Regulator
o External Auditor
D. Information on the Following Legal Questions
o Would the applicable foreign law restrict the access afforded
the independent public accountants of the Fund to books and
records kept by a Foreign Custodian?
o Would the applicable foreign law restrict the ability of the
Fund to recover its assets in the event of bankruptcy of the
Foreign Custodian?
o Would the applicable foreign law restrict the ability of the
Fund to recover assets that are lost while under the control
of the Foreign Custodian?
o What are the foreseeable difficulties in converting the Fund's
cash into U.S. dollars?
3. Liability and Warranties. While the Custodian will take reasonable
precautions to ensure that information provided is accurate the Custodian
shall have no liability with respect to information provided to it by third
parties unless the Custodian knows or should have known such information to
be incorrect, incomplete or misleading. Due to the nature and source of
information, and the necessity of relying on various information sources,
most of which are external to the Custodian, the Custodian shall have no
liability for direct or indirect use of such information. The Custodian
makes no other warranty or representation, either express or implied, as to
the merchantability or fitness for any particular purpose of the
information provided under this Appendix D.
Acknowledged:
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxxxxxx Xxxxx
------------------- ---------------------
Fund Custodian
