EXHIBIT (H)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
GABELLI XXXXXXXX FUNDS
AND
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
PAGE
----
1. Terms of APPOINTMENT AND Duties ..........................................1
2. Third Party ADMINISTRATORS for Defined Contribution Plans ................3
3. Fees and Expenses ........................................................4
4. Representations and Warranties of the Transfer Agent .....................5
5. Representations and Warranties of the Fund ...............................5
6. Wire Transfer Operating Guidelines .......................................6
7. DATA ACCESS AND PROPRIETARY Information ..................................7
8. Indemnification ..........................................................9
9. Standard of Care ........................................................10
10. Year 2000 ...............................................................10
11. Confidentiality .........................................................11
12. Covenants of the Fund and the Transfer Agent ............................11
13. Termination of Agreement ................................................12
14. Assignment AND Third Party Beneficiaries ................................13
15. Subcontractors ..........................................................13
16. MISCELLANEOUS ...........................................................14
17. Additional Funds ........................................................16
18. LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS ...............16
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 1st day of January, 2000, by and between GABELLI
XXXXXXXX FUNDS, a Maryland BUSINESS trust, having its principal office and place
of business at Xxx Xxxxxxxxx Xxxxxx, Xxx, Xxx Xxxx 00000 (the "Fund"), and STATE
STREET BANK AND TRUST COMPANY, a Massachusetts trust company having its
principal office and place of business at 000 Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Transfer Agent").
WHEREAS, the Fund 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 FUND INTENDS to initially offer shares in -- # series, such series
shall be named in the attached Schedule A which may be amended by the parties
from time to time (each such series, together with all other series subsequently
established by the Fund and made subject to this Agreement in accordance with,
SECTION 17, being herein referred to as a "Portfolio", and collectively as the
"Portfolios"); and
WHEREAS, the Fund on behalf of the Portfolios desires to appoint the Transfer
Agent as its transfer agent, dividend disbursing agent, custodian of certain
retirement plans and agent in connection with certain other activities, and the
Transfer Agent desires to accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows;
1. TERMS OF APPOINTMENT AND DUTIES
1.1 TRANSFER AGENCY SERVICES, Subject to the terms and conditions set
forth in this Agreement, the Fund, on behalf of the Portfolios,
hereby employs and appoints the Transfer Agent to act as, and the
Transfer Agent agrees to act as its transfer agent for the Fund's
authorized and issued shares of its beneficial interest ("Shares"),
dividend disbursing agent, custodian of certain retirement plans and
agent in connection with any accumulation, open-account or similar
plan provided to the shareholders of each of the respective
Portfolios of the Fund ("Shareholders") and set out in the currently
effective prospectus and statement of additional information
("prospectus") of the Fund on behalf OF THE applicable Portfolio,
including without limitation any periodic investment plan or
periodic withdrawal program. In accordance with procedures
established from time to time by agreement between the Fund on
behalf of each of the Portfolios, as applicable and the Transfer
Agent, the Transfer Agent agrees that it will perform the following
services:
(a) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof to
the Custodian of the Fund authorized pursuant to the Declaration of
Trust of the Fund (the "Custodian");
(b) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(c) Receive for ACCEPTANCE redemption requests and redemption
directions and deliver the appropriate documentation thereof to the
Custodian;
(d) In respect to the transactions in items (a), (b) and (c) above,
the Transfer Agent shall execute transactions directly with
broker(.)dealers authorized by the Fund;
(e) 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;
(f) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and distributions
declared by the Fund on behalf of the applicable Portfolio;
(h) Issue replacement certificates for those certificates alleged to
have been lost, stolen or destroyed upon receipt by the Transfer
Agent of indemnification satisfactory to the Transfer Agent and
protecting the Transfer Agent and the Fund, and the Transfer Agent
at its option, may issue replacement certificates in place of
mutilated stock certificates upon presentation thereof and without
such indemnity;
(i) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing; and
(j) Record the issuance of Shares of the Fund and maintain pprsuant
to SEC Rule 17Ad-10(e) a record of the total number of Shares of the
Fund which are authorized, based upon data provided to it by THE
Fund, and issued and outstanding. The Transfer Agent shall also
PROVIDE the Fund 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 issue or sale of such Shares, which fi.mctions shall be the
sole responsibility of the Fund,
1.2 ADDITIONAL SERVICES. In addition to, and neither in lieu nor in
contravention of, the SERVICES SET forth in the above paragraph, the
Transfer Agent shall perform the following SERVICES:
(a) OTHER CUSTOMARY SERVICES. Perform the customary services of a
transfer agent, dividend disbursing agent, custodian of certain
retirement plans and, as relevant, agent in connection with
accumulation, open-account or similar plan (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 Shareholder
proxies, SHAREHOLDER reports and prospectuses to current
Shareholders, withholding taxes on U.S. resident and non-resident
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
2
purchases and redemptions of Shares and other confirmable
transactions in Shareholder accounts, preparing and mailing activity
statements for Shareholders, and providing Shareholder account
information;
(b) CONTROL BOOK (ALSO KNOWN AS "SUPER SHEET'). Maintain a daily
record and produce a daily report for the Fund of all transactions
and receipts and disbursements of money and securities and deliver a
copy of such report for the Fund for each business day to the Fund
no later than 9:00 AM Eastern Time, or such earlier time as the Fund
may reasonably require, on the next business day;
(c) "BLUE SKY" REPORTING. The Fund shall (i) identify to the
Transfer Agent in writing those transactions and assets to be
treated as exempt from blue sky reporting for each State and (ii)
verify the establishment of transactions for each. State on the
system prior to activation and thereafter monitor the daily activity
for each State. The responsibility of the Transfer AGENT for the
Fund's blue sky State registration status is solely limited to the
initial establishment of transactions subject to blue sky compliance
by the Fund and providing a system which will enable the Fund to
monitor the total number of Shares sold in each State;
(d) NATIONAL SECURITIES CLEARING CORPORATION (THE "NSCC"). (I)
accept and effectuate the registration and maintenance of accounts
through Networking and the purchase, redemption, transfer and
exchange of shares in such accounts through Fund/SERV (Networking
and Fund/SERV being programs operated by the NSCC on behalf of
NSCC's participants, including the Fund), in accordance with,
instructions transmitted to and received by the Transfer Agent by
transmission from NSCC on behalf of broker-dealers and banks which
have been established by, or in accordance with the instructions of
authorized persons, as hereinafter defined on the dealer file
maintained by the Transfer Agent; (ii) issue instructions to Fund's
banks for the settlement of transactions between the Fund and NSCC
(acting on behalf of its broker-dealer and bank participants); (iii)
provide account and transaction information from the affected Fund's
records on DST Systems, Inc, computer system. TA2000 ("TA2000
System") in accordance with NSCC's Networking and Fund/SERV rules
for those broker-dealers; and (iv) maintain Shareholder accounts on
TA2000 System through Networking;
(e) New PROCEDURES, New procedures as to who shall provide certain
of these services in SECTION 1 may be established in writing from
time to time by agreement between the Fund and the Transfer Agent,
The Transfer Agent may at times perform only a portion of these
services and the Fund or its agent may perform these services on the
Fund's behalf; and
(f) ADDITIONAL TELEPHONE SUPPORT SERVICES. If the parties elect to
have the Transfer Agent provide ADDITIONAL telephone support
services under this AGREEMENT, THE parties will agree to such
services, fees and sub-contracting as stated in Schedule 1.2(f)
entitled "Telephone Support Services" attached hereto,
6
2. THIRD PARTY ADMINISTRATORS FOR DEFINED Contribution Plans
2.1 The Fund may decide to make available to certain of its customers, a
qualified plan program (the "Program") pursuant to which the
customers ("Employers") may adopt certain plans of deferred
compensation ("Plan or Plans") for the benefit of the individual
Plan participant (the "Plan Participant"), such. Plan(s) being
qualified under Section 401(a) of the Internal Revenue Code of 1986,
as amended ("Code") and administered by third party administrators
which may be plan administrators as defined in the Employee
Retirement Income Security Act of 1974, as amended (the "TPA(s)").
2,2 In accordance with the procedures established in the initial
Schedule 2.1 entitled "Third Party Administrator Procedures", as may
be amended by the Transfer Agent and the Fund from time to time
("Schedule 2,1"), the Transfer Agent shall:
(a) Treat Shareholder accounts established by the Plans in the name
of the Trustees, Plans or TPAs as the case may be as omnibus
accounts;
(b) Maintain omnibus accounts on its records in the name of the TPA
or its designee as the Trustee for the benefit of the Plan; and
(c) Perform all services under SECTION 1 as transfer agent of the
Funds and not as a record-keeper for the Plans.
2,3 Transactions identified under SECTION 2 of this Agreement shall be
deemed exception services ("Exception Services") when such
transactions:
(a) Require the Transfer Agent to use methods and procedures other
than those usually employed by the Transfer Agent to perform
services under SECTION 1, of this Agreement;
(b) Involve the provision of information to the Transfer Agent after
the commencement of the nightly processing cycle of the TA2000
System; or
(c) Require more manual intervention by the Transfer Agent, either
in the entry of data or in the modification or amendment of reports
generated by THE TA2000 System than is usually required by
non-retirement plan and pre-nightly transactions,
3. FEES AND EXPENSES
3.1 FEE SCHEDULE. For the performance by the Transfer Agent pursuant to
this AGREEMENT, the Fund agrees to pay THE TRANSFER Agent an annual
maintenance fee for each Shareholder account as set forth in the
attached fee schedule ("Schedule 3.1"). Such fees and out-of-pocket
expenses and advances identified under SECTION 3.2 below may be
changed FROM TIME TO time subject to mutual written agreement
between the Fund and the TRANSFER AGENT,
7
3.2 OUT-OF-POCKET EXPENSES. In addition to the fee paid under SECTION
3.1 above, the Fund agrees to reimburse the Transfer Agent for
out-of-pocket expenses, including but not limited to confirmation
production, postage, forms, telephone, microfilm, microfiche,
mailing and tabulating proxies, records storage, or advances
incurred by the Transfer Agent for the items set out in Schedule 3.1
attached hereto. In addition, any other expenses incurred by the
Transfer Agent at the request or with the consent of the Fund, will
be reimbursed by the Fund.
3.3 POSTAGE, Postage for mailing of dividends, proxies, Fund reports and
other mailings to all shareholder accounts shall be advanced to the
Transfer Agent by the Fund at least seven (7) DAYS prior to the
mailing date of such materials.
3.4 INVOICES. The Fund agrees to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of the respective
billing notice, except for any fees or expenses that are subject to
good faith dispute. In the event of such a dispute, the Fund may
only withhold that portion of the fee or expense subject to the good
faith dispute, The Fund shall notify the Transfer Agent in writing
within twenty-one (21) calendar days following the receipt of each
billing notice if the Fund IS disputing any amounts in good faith.
If the Fund does not provide such notice of dispute within the
required time, the billing notice will be deemed accepted by the
Fund. The Fund shall settle such disputed amounts within five (5)
days of the day on which the parties agree on the amount to be paid
by payment of the agreed amount. If no agreement is reached, then
such disputed amounts shall be settled as may be required by law or
legal process.
3.5 LATE PAYMENTS. If any undisputed amount in an invoice of the
Transfer Agent (for fees or reimbursable expenses) is not paid when
due, the Fund shall pay the Transfer Agent interest thereon (from
the due date to the date of payment) at a per annum rate equal to
one percent (1.0%) plus the Prime RATE (that IS, the base rate on
corporate loans posted by large domestic banks) published by THE
WALL STREET JOURNAL (or, in the event such rate is not so published,
a reasonably equivalent published rate selected by the Fund) on the
first day of publication during the month when such amount was due.
Notwithstanding any other provision hereof, such interest rate shall
be no greater than permitted under applicable provisions of
Massachusetts law.
4. REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT
The Transfer Agent represents and warrants to the Fund that:
4.1 It is a trust company duly organized and existing and in good
standing under the laws of The Commonwealth of Massachusetts.
4.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts,
4.3 It is empowered under applicable laws and by its Charter and By-Laws
to enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
8
4.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE FUND THE
Fund represents and warrants to the Transfer Agent that:
5.1 It is a business trust duly organized and existing and in good
standing under the laws of the State of Maryland.
5.2 It is empowered under applicable laws and by its Declaration of
Trust and By-Laws to enter into and perform this Agreement.
5.3 All corporate proceedings required by said Declaration of Trust and
By-Laws have been taken to authorize it to enter into and perform
this Agreement,
5.4 It is an open-end and diversified management investment company
registered under the Investment Company Act of 1940, as amended,
5.5 A registration statement under the Securities Act of 1933, as
amended 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 Fund being
offered for sale.
6. XXXX TRANSFER OPERATING GUIDELINES/ARTICLES 4A OLDIE UNIFORM
COMMERCIAL CODE
6.1 OBLIGATION OF SENDER. The Transfer Agent is authorized to promptly
debit the appropriate Fund account(s) upon the receipt of a payment
order in compliance with the selected security procedure (the
"Security Procedure") chosen for funds transfer and in the amount of
money that the Transfer Agent has been instructed to transfer. The
Transfer Agent shall execute payment orders in compliance with the
Security Procedure and with the Fund instructions ON the execution
date provided that such payment order is received by the customary
deadline for processing such a request, unless the payment order
specifies a later time. All payment orders and communications
received after this the customary deadline will be deemed to have
been received the next business day.
6.2 SECURITY PROCEDURE. THE Fund acknowledges that the Security
Procedure it has designated on the Fund Selection Form was selected
by the Fund from security procedures offered by the Transfer Agent.
The Fund shall restrict access to confidential information relating
to the Security Procedure TO authorized persons as communicated to
the Transfer Agent in writing. The Fund must notify the Transfer
Agent immediately if it has reason to believe unauthorized persons
may have obtained access TO SUCH information or of any change in the
Fund's authorized personnel. The Transfer Agent shall verify the
authenticity of all Fund instructions according to the Security
Procedure.
9
6.3 ACCOUNT NUMBERS. The Transfer Agent SHELL process all payment orders
on the basis of the account number contained in THE payment order.
In the event of a discrepancy between any name indicated on the
payment order and the account number, the account number shall take
precedence and govern,
6.4 REJECTION. The Transfer Agent reserves the right to decline to
process or delay the processing of a payment order which (a) is in
excess of the collected balance in the account to be charged at the
time OF the Transfer Agent's receipt of such payment order; (b) if
initiating such payment order would cause the Transfer Agent, in the
Transfer Agent's sole judgement, to exceed any volume, aggregate
dollar, network, time, credit or similar limits which are applicable
to the Transfer Agent; or (c) if the Transfer Agent, in good faith,
is unable to satisfy itself that the transaction has been properly
authorized,
6.5 CANCELLATION AMENDMENT. The Transfer Agent shall use reasonable
efforts to ACT on all authorized requests to cancel or amend payment
orders received in compliance with the Security Procedure provided
that such requests are received in a timely manner affording the
Transfer Agent reasonable opportunity to act. However, the Transfer
AGENT ASSUMES no liability if the request for amendment or
cancellation cannot be satisfied.
6.6 ERRORS, THE Transfer Agent shall assume no responsibility for
failure to detect any erroneous payment order provided that the
Transfer Agent complies with the payment order instructions AS
received and the Transfer Agent complies WITH the SECURITY
Procedure. The Security Procedure is established for the purpose of
authenticating payment orders only and not for the DETECTION of
errors in payment orders.
6.7 INTEREST. The Transfer Agent shall assume no responsibility for lost
interest with respect to the refundable amount of any unauthorized
payment order, unless the Transfer Agent is notified of the
unauthorized payment order within thirty (30) days of notification
by the Transfer Agent of the acceptance of such payment order,
6.8 4CH CREDIT ENTRIES/PROVISIONAL PAYMENTS. WHEN the Fund initiates or
receives Automated Clearing House credit and debit entries pursuant
to these guidelines and the rules of the National Automated Clearing
House Association and the New England Clearing House Association,
the Transfer Agent will act as an Originating Depository Financial
Institution and/or Receiving Depository Financial Institution, as
the case may be, with respect to such entries, Credits given by the
Transfer Agent with respect to an ACTS credit entry are provisional
until the Transfer Agent receives final settlement for SUCH ENTRY
FROM THE Federal Reserve Bank. If the Transfer Agent does not
receive such final settlement, the Fund agrees that the Transfer
Agent shall receive a refund of the amount credited to the Fund in
connection with such entry, and the party making payment to the Fund
via such entry shall not be deemed to have paid the amount of the
entry.
6.9 CONFIRMATION. Confirmation of Transfer Agent's execution of payment
orders shall ordinarily be provided within twenty four (24) hours
notice OF which MAY be delivered through the Transfer Agent's
proprietary information systems, or by facsimile or call-back. Fund
must report any objections to the execution of an order within
thirty (30) days.
10
7. DATA ACCESS AND PROPRIETARY INFORMATION
7,1 The Fund acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and
documentation manuals furnished to the Fund by the Transfer Agent as
part of the Fund's ability to access certain Fund-related data
("Customer Data") maintained by the Transfer Agent on databases
under the control and ownership of the Transfer Agent or other third
party ("Data Access Services") constitute copyrighted, trade secret,
or other proprietary information (collectively, "Proprietary
Information") of substantial value to the Transfer Agent or other
third party. In no event shall Proprietary Information be deemed
Customer Data, The Fund agrees to treat all Proprietary Information
as proprietary to the Transfer Agent and further agrees that it
shall not divulge any Proprietary Information to any person or
organization except as may be provided hereunder, Without limiting
the foregoing, the Fund agrees for itself and its employees and
agents to:
(a) Use such programs and databases (i) solely on the Fund's
computers, or (ii) solely from equipment at the location agreed to
between the Fund AND the Transfer Agent and (iii) solely in
accordance with the Transfer Agent's applicable user documentation;
(b) Refrain from copying or duplicating in any way (other than in
the normal course of performing processing on the Fund's
computer(s)), the Proprietary Information;
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently
obtained, to inform in a timely manner of such fact and dispose of
such information in accordance with the Transfer Agent's
instructions;
(d) Refrain from causing or allowing information transmitted from
the Transfer Agent's computer to the Fund's terminal to be
retransmitted to any other computer terminal or other device except
as expressly permitted by the Transfer Agent (such permission not to
be unreasonably withheld);
(e) Allow the Fund to have access only to those authorized
transactions as agreed to between the Fund and the Transfer Agent;
and
(f) Honor all reasonable written requests made by the Transfer Agent
to protect at the Transfer Agent's expense the rights of the
Transfer Agent in Proprietary Information at common law, under
federal copyright law and under other federal or state law.
7.2 Proprietary Information shall not include all or any portion of any
of the foregoing items that: (i) are or become publicly available
without breach of this Agreement; (ii) are released for general
disclosure by a written release by the Transfer Agent; or (iii) are
already in the possession of the receiving party at the time of
receipt without obligation of confidentiality or breach of this
Agreement.
11
7.3 The Fund acknowledges that its obligation to protect the Transfer
Agent's Proprietary Information is essential to THE business
interest of the Transfer AGENT and that the disclosure of such
Proprietary Information in breach of this Agreement would CAUSE the
TRANSFER Agent immediate, substantial and irreparable harm, the
value of which would be extremely difficult to DETERMINE,
Accordingly, THE parties AGREE that, in addition to any other
remedies that may be available in law, equity, or otherwise for the
disclosure or use of the Proprietary Information in breach of this
Agreement, the Transfer Agent shall be entitled to seek and obtain a
temporary restraining order, injunctive relief, or other equitable
relief against the continuance of such breach.
7.4 If the Fund notifies the Transfer Agent that any of THE Data Access
Services do not operate in material compliance with the most
recently issued user documentation for such services, the Transfer
Agent shall endeavor in a timely manner to correct such failure.
Organizations from which the Transfer AGENT MAY obtain certain data
included in the Data Access Services are solely responsible for the
contents of such data and the Fund agrees to make no claim against
the Transfer Agent arising out of the contents of such third-party
data, including, but NOT limited TO, the accuracy thereof. DATA
ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE
SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS
IS, AS AVAILABLE BASIS, THE TRANSFER AGENT EXPRESSLY DISCLAIMS ALL
WARRANTIES EXCEPT THOSE EXPRESSLY STATED IIEREIN INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
7.5 If the transactions available TO THE Fund include the ABILITY TO
ORIGINATE electronic instructions to the Transfer Agent 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 Transfer Agent 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 Transfer Agent from time to
time.
7,6 Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this SECTION 7. The obligations of
this Section shall survive any earlier termination of this
Agreement.
8. INDEMNIFICATION
8.1 The Transfer Agent SHALL not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent 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 Transfer Agent or its agents or
subcontractors required to be taken pursuant to this Agreement
(including the defense of any law suit in which the Transfer Agent
or affiliate is a named party), 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;
12
(c) The reliance upon, and any subsequent use of or action taken or
omitted, by the Transfer Agent, or its agents or subcontractors on:
(i) any information, records, documents, data, stock certificates or
services, which are received by the Transfer Agent or its agents or
subcontractors by machine readable input, facsimile, CRT data entry,
electronic instructions or other similar means authorized by the
Fund, and which 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 broker-dealer, TPA or previous transfer agent;
(ii) any instructions or requests of the Fund or any of its
officers; (iii) any instructions or opinions of legal counsel with
respect to any matter arising in connection with the services to be
performed by the Transfer Agent under this Agreement which are
provided to the Transfer Agent after consultation with such legal
counsel; or (iv) any paper or document, reasonably believed to be
genuine, authentic, or signed by the proper person or persons;
(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered or in violation of any stop order or other determination
or ruling by any federal or any state agency with respect to the
offer or sale of such Shares;
(e) The negotiation and processing of ANY checks including without
limitation for deposit into the Fund's demand deposit account
maintained by the Transfer Agent; or
(f) Upon the Fund's request entering into any agreements required by
the NSCC for the transmission of Fund or Shareholder data through
the NSCC clearing systems.
8.2 In order that the indemnification provisions contained in this
SECTION 8 shall apply, upon the assertion of a claim for which the
Fund may be required to indemnify the Transfer Agent, THE Transfer
Agent shall promptly notify the Fund 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
Transfer Agent in the defense of such claim or to defend against
said CLAIM IN ITS OWN name or in the NAME OF the Transfer Agent. The
Transfer Agent shall in no case confess any claim or make any
compromise in any case in which the Fund may be required to
indemnify the Transfer AGENT except with the Fund's prior written
consent.
9. STANDARD OF CARE
The Transfer Agent shall at all times act in good faith and agrees
to use its best efforts within reasonable limits to ensure 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, including encoding and payment processing ERRORS, unless
said errors are caused by its negligence, bad faith, or willful
misconduct OR THAT OF ITS employees or agents. THE parties agree
that any encoding or payment processing errors shall be governed by
this standard of care and Section 4-209 of the Uniform Commercial
Code is superseded by SECTION 9 of this Agreement. This standard of
care also shall apply to Exception Services, as defined in SECTION
2.3 herein, but such application shall take into consideration the
manual processing involved in, and time sensitive nature of,
Exception Services.
13
10. YEAR 2000
The Transfer Agent will take reasonable steps to ensure that its
products (and those of its third-party suppliers) reflect the
available technology to offer products that are Year 2000 ready,
including, but not limited to, century recognition of dates,
calculations that correctly compute SAME century and multi century
formulas and date values, and interface - values THAT reflect the
date issues arising between now arid the next one-hundred years, and
if any changes are required, the Transfer Agent will make the
changes to its products at a price to be agreed upon by the parties
and in a commercially reasonable time frame and will require
third-party suppliers to do likewise.
11. CONFIDENTIALITY
11.1 The Transfer Agent and the Fund agree that they will not, at any
time during the term of this Agreement or after its termination,
reveal, divulge, or make known to any person, firm, corporation or
other business organization, any customers' lists, trade secrets,
cost figures and projections, profit figures and projections, or any
other secret or confidential information whatsoever, whether of the
Transfer Agent or of the Fund, used or gained by the Transfer Agent
or the Fund during performance under this Agreement. The Fund and
the Transfer Agent further covenant and agree to retain all such
knowledge and information acquired dining and after the term of this
Agreement respecting such lists, trade secrets, or any secret or
confidential information whatsoever in trust for the sole benefit of
the Transfer Agent or the Fund and their successors and assigns. In
the event of breach of the foregoing by either party, the remedies
provided by SECTION 7.3 shall be available to the party whose
confidential information is disclosed. The above prohibition of
disclosure shall not apply to the extent that the Transfer Agent
must disclose such data to its sub-contractor or Fund agent for
purposes of providing services under this Agreement.
11.2 In the event that any requests or demands are made for the
inspection of the Shareholder records of the Fund, other than
request for records of Shareholders pursuant to standard subpoenas
from state or federal government authorities (i.e., divorce and
criminal actions), the Transfer Agent will endeavor to notify the
Fund and to secure instructions from an authorized officer of the
Fund as to such inspection. The Transfer Agent expressly reserves
the right, however, to exhibit the Shareholder records to any person
whenever it is advised by counsel THAT it may be held liable for the
failure to exhibit the Shareholder records to such person or if
required by law or court order.
12. COVENANTS OF THE FUND AND THE TRANSFER AGENT
12.1 The Fund shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Trustees of
the Fund authorizing the appointment of the Transfer Agent and the
execution and delivery of this Agreement; and,
(b) A copy of the Declaration of Trust and By-Laws of the Fund and
all amendments thereto.
14
12.2 The Transfer Agent 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.
12.3 The Transfer Agent 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
Transfer Agent agrees that all such records prepared or maintained
by the Transfer Agent relating to the services to be performed by
the Transfer Agent 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.
13. TERMINATION OF AGREEMENT
13.1 TERM. THE initial term of this Agreement (the "Initial Term") shall
be three (3) years from the date first stated above unless
terminated pursuant to the provisions of this SECTION 13. Unless a
terminating PARTY gives written notice to the other party one
hundred and twenty (120) days before the expiration of the Initial
Term or any Renewal Term., this Agreement will renew automatically
from year to year (each such year-to-year renewal term a "Renewal
Term'). One hundred and twenty (120) days before the expiration of
the Initial Term or a Renewal Term the parties to this Agreement
will agree upon a Fee Schedule for the upcoming Renewal Term,
13.2 EARLY TERMINATION. Notwithstanding anything contained in this
Agreement to the contrary, should the Fund desire to move any of its
services provided by the Transfer Agent hereunder to a successor
service provider prior to the expiration of the then current Initial
or Renewal Term, or without the required notice, the Transfer Agent
shall make a good faith effort to facilitate the conversion on such
prior date; however, there can be no guarantee or assurance that the
Transfer Agent will be able to facilitate a conversion of services
on such prior date. In connection with the foregoing, should
services be converted to a successor service provider, or if the
Fund is liquidated or its assets merged or purchased or the like
with or by another entity which does NOT utilize the services of the
Transfer Agent, the fees payable to the Transfer Agent shall be
calculated as if the services had been performed by the Transfer
Agent until the expiration of the then current Initial or Renewal
Term or such earlier date as mutually agreed upon and calculated at
the asset and/or Shareholder account levels, as the case may be, on
the date notice of termination was given to the Transfer Agent, and
the payment of all fees to the Transfer Agent as set forth herein
shall be accelerated to the business day immediately prior to the
conversion or termination of services.
13.3 EXPIRATION OF TERM. During the Initial Term or Renewal Term,
whichever currently is in effect, should either party exercise its
right to terminate, all out-of-pocket expenses or costs associated
with the movement of records and material will be borne by the Fund.
Additionally, the Transfer Agent reserves the right to charge for
any other reasonable expenses associated with such termination.
15
13,4 CONFIDENTIAL INFORMATION. UPON termination of this Agreement, each
party SHALL return to the other party all copies of confidential or
proprietary materials or information received from such other party
hereunder, other than materials or information required to be
retained by such party under applicable LAWS or regulations.
13.5 UNPAID INVOICES. The Transfer Agent may terminate this Agreement
immediately upon an unpaid invoice payable by the Fund to the
Transfer Agent being outstanding for more than ninety (90) days,
except with respect to any amount subject to a good faith dispute
within the meaning of SECTION 3,4 of this Agreement.
13,6 BANKRUPTCY. EITHER PARTY hereto may terminate this Agreement by
notice to the other party, effective at any time specified therein,
in the event that (a) the other party ceases to carry on its
business or (b) AN action is commenced by or against the other party
under Title 11 of the United States Code or a receiver, conservator
or similar officer is appointed for the other party and such suit,
conservatorship or receivership is not discharged within thirty (30)
days.
14. ASSIGNMENT AND THIRD PARTY BENEFICIARIES
14,1 Except as provided in SECTION 15.1 below neither this Agreement nor
any rights or obligations hereunder may be assigned by either party
without the written consent of the other party, Any attempt to do so
in violation of this Section shall be void. Unless specifically
stated to the contrary in any written consent to an assignment, no
assignment will release or discharge the assignor from any duty or
responsibility under this Agreement.
14,2 Except as explicitly stated elsewhere in this Agreement, nothing
under this Agreement shall be construed to give any rights or
benefits in this Agreement to anyone other than the Transfer Agent
and THE Fund, and the duties and responsibilities undertaken
pursuant to this Agreement shall be for the sole and exclusive
benefit of the TRANSFER Agent and the Fund. This Agreement shall
inure to the benefit of and be binding upon the parties and their
respective permitted successors and assigns.
14.3 This Agreement does not constitute an agreement for a partnership or
joint venture between the Transfer Agent and the Fund. Other than as
provided in SECTION 15.1 and Schedule 1.2(f), neither party shall
make any commitments with third parties that are binding on the
other party without the other party's prior written consent.
15. SUBCONTRACTORS
15,1 The Transfer Agent 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 ("Boston
Financial") which is duly registered as a transfer agent pursuant to
Section 17A(c)(2) of the Securities Exchange Act of 1934, as
amended, (ii) a Boston Financial subsidiary duly registered as a
transfer agent or (iii) a Boston Financial affiliate
16
duly REGISTERED AS A TRANSFER agent; provided, however, that the
Transfer Agent shall be fully responsible to the Fund for the acts
and omissions of Boston Financial or its subsidiary or affiliate as
it is for its own acts and omissions.
15.2 Nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the Transfer Agent liable for the actions or
omissions to act of unaffiliated third parties SUCH as by way of
example and not limitation, Airborne Services, Federal Express,
United Parcel Service, the U.S. Mails, the NSCC and
telecommunication companies, provided, if the Transfer Agent
selected such company, the Transfer Agent shall have exercised due
care in. selecting the SAME.
16. MISCELLANEOUS
16.1 AMENDMENT. 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 Trustees of the Fund.
16.2 MASSACHUSETTS LAW TO APPLY. This Agreement shall be construed and
the provisions thereof interpreted under and in accordance with the
laws of The Commonwealth of MASSACHUSETTS.
16.3 FORCE MAJEURE. 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.
16.4 CONSEQUENTIAL DAMAGES. Neither party to this Agreement shall be
liable to the other party for special, indirect or consequential
damages under any provision OF THIS Agreement or for any special,
indirect or consequential damages arising out of any act or failure
to act hereunder.
16.5 SURVIVAL. All provisions regarding indemnification, warranty,
liability, and limits thereon, and confidentiality and/or
protections of proprietary rights and trade secrets shall survive
the termination of this Agreement.
16.6 SEVERABILITY. If any provision or provisions of this AGREEMENT shall
be held invalid, unlawful, or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way
be affected or impaired,
16.7 PRIORITIES CLAUSE. In THE EVENT of any conflict, discrepancy or
ambiguity BETWEEN THE terms and conditions contained in this
Agreement and any Schedules or attachments hereto, the terms and
conditions contained in this Agreement shall take precedence.
16.8 WAIVER, No waiver by either party or ANY breach or default of any of
the covenants or conditions herein contained and performed by the
other party shall be construed as a waiver of any succeeding breach
of the same or of any other covenant or condition.
17
16.9 MERGER OF AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with
respect to the subject matter HEREOF whether oral or written.
16.10 COUNTERPARTS. 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.
16.11 REPRODUCTION OF DOCUMENTS. This Agreement and all schedules,
exhibits, attachments and amendments hereto may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto each AGREE
that ANY SUCH reproduction shall be admissible in EVIDENCE as the
original itself in any judicial or administrative proceeding,
whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular COURSE OF business,
and that any enlargement, facsimile or further reproduction shall
likewise be admissible in evidence.
16.12 NOTICES. All notices and other communications as required or
permitted hereunder shall be in writing and sent by first class
mail, postage prepaid, addressed as follows or to such other address
or addresses of which the respective party shall have notified the
other.
(a) If to State Street Bank and Trust Company, to;
State Street Bank and Trust Company
c/o Boston Financial Data SERVICES, INC.
0000 Xxxxxxx Xxxxxx, XXXXX 000X
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
FACSIMILE: (000) 000-0000
(b) If to the Fund, to:
Gabelli Funds, LLC
0 Xxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Attention; Xxxxx Xxxxxx
17. ADDITIONAL FUNDS
In the EVENT that the Fund establishes one or more series of Shares,
in addition to those listed on the attached Schedule A, with respect
to which it desires to have the Transfer Agent render services as
transfer agent under the terms hereof, it shall so notify the
Transfer Agent in writing, and if the Transfer Agent agrees in
writing to provide such services, such series of Shares shall become
a Portfolio hereunder.
A copy of the Declaration of Trust of the Trust IS ON file with THE Secretary of
The Commonwealth of Massachusetts, and notice is hereby GIVEN that this
instrument is executed on behalf of the Trustees of the Trust as Trustees and
not individually and that the obligations of this instrument are not binding
upon any of the Trustees or Shareholders individually but are binding only upon
the assets and property of the Fund.
18
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.
GABELLI XXXXXXXX FUNDS
By: /s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
ATTEST:
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------
Xxxxxxxx Xxxxxxxx
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx Xxxxx
--------------------------------
Xxxxxx Xxxxx
19
SCHEDULE A
Xxxxxxxx Capital Value Fund
Xxxxxxxx Strategy Fund
GABELLI XXXXXXXX FUNDS STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxx
------------------- -----------------
Xxxxx X. Xxxxxx Xxxxxx Xxxxx
SCHEDULE 1.2(f)
ADDITIONAL TELEPHONE SUPPORT FEES AND SERVICES
Dated:__________________
I. SERVICES
1. Transfer Agent and Telephone Support Functions
a. Answer telephone inquiries from [XXX 8 a.m. to 8 p.m. Boston time
Monday through Friday except Christmas Day XXX] [XXX OTHER HOLIDAY
COVERAGE AVAILABLE?XXX] from [XXX existing customers and prospective
customers XXX] of the Fund [XXX for sales literature [XXX] in
accordance with the telephone script provided by the Fund.
b. Answer questions pertaining thereto the extent that such questions
are answerable based upon the information supplied to the Transfer
Agent by the Fund.
c. (XXX As the Fund and the Transfer Agency may agree in writing, the
Transfer Agent will RECEIVE calls and take written transaction
requests from shareholders of the Fund. Transfer Agent transactions
include: [XXX telephone redemptions, account maintenance, exchanges,
transfers, confirmed purchases, account balances and general
inquiries XXX]. Some transactions may result in research which will
be done by the Fund. Other calls may be referred directly to the
Fund. Fax any referrals to [XXX name of company XXX] on the same day
the telephone call is received XXX];
2. Incorporate new information into the above-referenced script upon written
instructions from the Fund;
3. Maintain prospect detail information or six (6) months thereafter, provide
such information to the Fund in the form that the Fund may reasonably
request;
4. Send all literature orders for information for six (6) months thereafter,
provide such information to the Fund in the Form that the Fund may
reasonably request:
5. Provide the Fund with a [XXX daily/weekly/monthly XXX] telephone report
detailing the calls received during the (XXX day/week/month XXX];
6. [XXX Provide the Fund with monthly conversion reports as selected by the
Fund from DST's standard report package. XXX]
7. TARGET SERVICE LEVELS: Average speed of answer is fifteen (15) seconds,
abandon rate of no more than 2%, and an overall service level of 85%. The
averages will be calculated on a weekly basis.
2
IL SUBCONTRACTORS
1. The Transfer Agent may, without further consent on the part of the Fund,
subcontract ministerial telephone support services for the performance
hereof.
III. FEES
STATE STREET BANK AND TRUST COMPANY
BY: _____________________ BY:_______________________
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
Dated: January 1, 2000
On each day on which both the New York Stock Exchange and THE Fund are
open for business (a "Business Day"), the TPA(s) shall receive, on behalf
of and as agent of the Fund, Instructions (as hereinafter defined) from
the Plan. Instructions shall mean as to each Fund (i) orders by the Plan
for the purchases of Shares, and (ii) requests by the Plan for the
redemption of Shares; in each case based on the Plan's receipt of purchase
orders and redemption requests by Participants in proper form by the time
required by the terms of the Plan, but not later than the time of day at
which the net asset value of a Fund is calculated, as described from time
to time in that Fund's prospectus. Each Business Day on which the TPA
receives Instructions shall be a "Trade Date".
2. The TPA(s) shall communicate the TPA(s)'s acceptance of such Instructions,
to the applicable Plan.
On the next succeeding Business Day following the Trade Date on which it
accepted Instructions for the purchase and redemption of Shares, (TD+l),
the TPA(s) shall notify the Transfer Agent of the net amount of such
purchases or redemptions, as the case may be, for each of the Plans. In
the case of net purchases by any Plan, the TPA(s) shall instruct the
Trustees of such Plan to transmit the aggregate purchase price for Shares
by WIRE TRANSFER to the Transfer Agent on (TD+I). In the case of net
redemptions by any Plan, the TPA(s) shall instruct the Fund's custodian to
transmit the aggregate redemption proceeds for Shares by wire transfer to
the Trustees of such Plan on (TD+1). The times at which such notification
and transmission shall occur on (TD+I) shall be as mutually agreed upon by
each Fund, the TPA(s), and the Transfer Agent.
4. The TPA(s) shall maintain separate records for each Plan, which record
shall reflect Shares purchased and redeemed, including the date and price
for all transactions, and Share balances. The TPA(s) shall maintain on
behalf of each of the Plans a single master account with the Transfer
Agent and such account shall be in the name of that Plan, the TPA(s), or
the nominee of either thereof as the record owner of Shares owned by such
Plan.
5. The TPA(s) shall maintain records of all proceeds of redemptions of Shares
and all other distributions not reinvested in Shares.
6. The TPA(s) shall prepare, and transmit to each of the Plans, periodic
account statements showing the total number of Shares owned by that Plan
as of the statement closing date, purchases and redemptions of Shares by
the Plan during the period covered by the statement, and the dividends and
other distributions paid to the Plan on Shares during the statement period
(whether paid in cash or reinvested in Shares).
21
7, The TPA(s) shall, at the request and expense of each Fund, transmit to the
Plans prospectuses, proxy materials, reports, and other information
provided by each Fund for delivery to its shareholders.
8. The TPA(s) shall, at the request of each Fund, prepare and transmit to
each Fund or any agent designated by it such periodic reports covering
Shares of each Plan as each Fund shall reasonably conclude are necessary
to enable the Fund to comply with state Blue Sky requirements.
9. The TPA(s) shall transmit to the Plans confirmation of purchase orders and
redemption requests placed by the Plans; and
10. The TPA(s) shall, with respect to Shares, maintain account balance
information for the Plan(s) and daily and monthly purchase summaries
expressed IN Shares and dollar amounts.
11. Plan sponsors may request, or the law may require, that prospectuses,
proxy materials, periodic reports and other MATERIALS RELATING to each
Fund be furnished to Participants in which event the Transfer AGENT OR
each Fund shall mail or cause to be mailed SUCH materials to Participants.
With respect to any such mailing, the TPA(s) shall, at the request of the
Transfer Agent or each Fund, provide at the TPA(s)'s expense a complete
and accurate set of mailing labels with the name and address of each
Participant having an interest through the Plans in Shares,
GABELLI XXXXXXXX FUNDS STATE STREET BANK AND TRUST COMPANY
BY: BY: /s/ Xxxxxx Xxxxx
---------------------- ---------------------------------
Xxxxxx Xxxxx
SCHEDULE 31
FEES
DATED: JANUARY 1, 2000
GENERAL; Fees are based on annual per shareholder account charges for account
maintenance plus out-of-pocket expenses.
ANNUAL MAINTENANCE CHARGES: Fees are billable on a monthly basis at the rate of
1/12 of the annual fee. A charge is made for an account in the month that an
account opens or closes.
ACCOUNT SERVICE FEES
Open Account Fee $ 9.00
Closed Account Fee $ 1.20
Telephone Calls $ 1.50
Investor Fees $ 1.50 (excluding matrix level three
accounts)
XXX CUSTODIAL FEES (SHAREOWNER)
Annual Maintenance $ 10.00/per SSN for plans with combined
assets under $25,000.00
COMMISSION PROCESSING
CDSC $ 2.00/Account
12b-1 Accounting $ 1.50/Account
OUT-OF-POCKET EXPENSES; Out-of-Pocket expenses include but are not limited to
confirmation statements, postage, forms, audio response, ACH, telephone,
microfilm, microfiche, and expenses incurred at the specific direction of the
Fund.
GABELLI XXXXXXXX FUNDS STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxx
--------------------------- -------------------------------
Xxxxx X. Xxxxxx Xxxxxx Xxxxx
