REGISTRAR, TRANSFER AGENCY
AND SERVICE AGREEMENT
between
THE GABELLI UTILITIES FUND
and
STATE STREET BANK AND TRUST COMPANY
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TABLE OF CONTENTS
ARTICLE 1 TERMS OF APPOINTMENT; DUTIES OF THE BANK 3
ARTICLE 2 FEES AND EXPENSES 6
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE BANK 6
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE FUND 7
ARTICLE 5 DATA ACCESS AND PROPRIETARY INFORMATION 8
ARTICLE 6 INDEMNIFICATION 10
ARTICLE 7 STANDARD OF CARE 12
ARTICLE 8 COVENANTS OF THE FUND AND THE BANK 13
ARTICLE 9 TERMINATION OF AGREEMENT 14
ARTICLE 10 ASSIGNMENT 15
ARTICLE 11 AMENDMENT 15
ARTICLE 12 MASSACHUSETTS LAW TO APPLY 16
ARTICLE 13 FORCE MAJEURE 16
ARTICLE 14 CONSEQUENTIAL DAMAGES 16
ARTICLE 15 MERGER OF AGREEMENT 16
ARTICLE 16 SURVIVAL 17
ARTICLE 17 SEVERABILITY 17
ARTICLE 18 COUNTERPARTS 17
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REGISTRAR, TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 31st day of August, 1999, by and between The
Gabelli Utilities Fund, a Delaware 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, a Massachusetts business trust, having its
principal office and place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Bank").
WHEREAS, the Fund desires to appoint the Bank as its registrar, transfer
agent, dividend disbursing agent and agent in connection with certain other
activities and the Bank desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
ARTICLE 1. TERMS OF APPOINTMENT; DUTIES OF THE BANK
1.01 Subject to the terms and conditions set forth in this Agreement,
the Fund hereby employs and appoints the Bank to act as, and the
Bank agrees to act as registrar, transfer agent for the Fund's
authorized and issued shares of its common stock ("Shares"),
dividend disbursing agent and agent in connection with any dividend
reinvestment plan as set out in the prospectus of the Fund,
corresponding to the date of this Agreement.
A. The Bank agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between the Fund and the Bank, the Bank shall:
(i) Issue and record the appropriate number of Shares as
authorized and hold such shares in the appropriate
Shareholder account
(ii) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate documentation;
(iii)Prepare and transmit payments for dividends and
distributions declared by the Fund;
(iv) Act as agent for Shareholders pursuant to the dividend
reinvestment and cash purchase plan as amended from time
to time in accordance with the terms of the agreement to
be entered into between the Shareholders and the Bank in
substantially the form attached as Exhibit hereto;
(v) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon
receipt by the Bank of indemnification satisfactory to
the Bank and protecting the Bank and the Fund, and the
Bank at its option, may issue replacement certificates in
place of mutilated stock certificates upon presentation
thereof and without such indemnity.
(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), the Bank shall:
(i) perform all of the customary services of a registrar,
transfer agent, dividend disbursing agent and agent of the
dividend reinvestment and cash purchase plan as described in
Article 1 consistent with those requirements in effect as of
the date of this agreement. The detailed definition,
frequency, limitations and associated costs (if any) set out
in the attached fee schedule, include but are not limited to:
maintaining all Shareholder accounts, preparing Shareholder
meeting lists, mailing proxies, and mailing Shareholder
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reports to current Shareholders, withholding taxes on U.S.
resident and non-resident alien accounts where applicable,
preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required with respect to dividends and
distributions by federal authorities for all registered
Shareholders.
(c) The Bank shall provide additional services on behalf of the
Fund (i.e., escheatment services) which may be agreed upon in
writing between the Fund and the Bank.
ARTICLE 2. FEES AND EXPENSES
2.01 For the performance by the Bank pursuant to this Agreement, the
Fund agrees to pay the Bank an annual maintenance fee as set out in
the initial fee schedule attached hereto. Such fees and
out-of-pocket expenses and advances identified under Section 2.02
below may be changed from time to time subject to mutual written
agreement between the Fund and the Bank.
2.02 In addition to the fee paid under Section 2.01 above, the Fund
agrees to reimburse the Bank for out-of-pocket expenses, including
but not limited to confirmation production, postage, forms,
telephone, microfilm, microfiche, tabulating proxies, records
storage, or advances incurred by the Bank for the items set out in
the fee schedule attached hereto. In addition, any other expenses
incurred by the Bank at the request or with the consent of the
Fund, will be reimbursed by the Fund.
2.03 The Fund agrees to pay all fees and reimbursable expenses within
five days following the receipt of the respective billing notice.
Postage and the cost of materials for mailing of dividends,
proxies, Fund reports and other mailings to all Shareholder
accounts shall be advanced to the Bank by the Fund at least seven
(7) days prior to the mailing date of such materials.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE BANK
The Bank represents and warrants to the Fund that:
3.01 It is a trust company duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
3.02 It is duly qualified to carry on its business in the Commonwealth
of Massachusetts.
3.03 It is empowered under applicable laws and by its Charter and
By-Laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to the Bank that:
4.01 It is a corporation duly organized and existing and in good
standing under the laws of Maryland.
4.02 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement
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4.03 All corporate proceedings required by said Articles of
Incorporation and By-Laws have been taken to authorize it to enter
into and perform this Agreement.
4.04 It is a closed-end, diversified investment company registered under
the Investment Company Act of 1940, as amended.
4.05 To the extent required by federal securities laws a registration
statement under the Securities Act of 1933, as amended is currently
effective and appropriate state securities law filings have been
made with respect to all Shares of the Fund being offered for sale;
information to the contrary will result in immediate notification
to the Bank.
4.06 It shall make all required filings under federal and state
securities laws.
ARTICLE 5. DATA ACCESS AND PROPRIETARY INFORMATION
5.01 The Fund acknowledges that the data bases, computer programs,
screen formats, interactive design techniques, and other
information furnished to the Fund by the Bank are provided solely
in connection with the services rendered under this Agreement and
constitute copyrighted trade secrets or proprietary information of
substantial value to the Bank. Such databases, programs, formats,
designs, techniques and other information are collectively referred
to below as "Proprietary Information." The Fund agrees that it
shall treat all Proprietary Information to any person or
organization except as expressly permitted hereunder. The Fund
agrees for itself and its employees and agents:
(a) to use such programs and databases (i) solely on the Fund
computers, or (ii) solely from equipment at the locations
agreed to between the Fund and the Bank and (iii) in
accordance with the Bank's applicable user documentation;
(b) to refrain from copying or duplicating in any way (other than
in the normal course of performing processing on the Fund's
computers) any part of any Proprietary Information;
(c) to refrain from obtaining unauthorized access to any programs,
data or other information not owned by the Fund, and if such
access is accidentally obtained, to respect and safeguard the
same Proprietary Information;
(d) to refrain from causing or allowing information transmitted
from the Bank's computer to the Funds' terminal to be
retransmitted to any other computer terminal or other device
except as expressly permitted by the Bank, (such permission
not to be unreasonably withheld);
(e) that the Fund shall have access only to those authorized
transactions as agreed to between the Fund and the Bank; and
(f) to honor reasonable written requests made by the Bank to
protect at the Bank's expense the rights of the Bank in
Proprietary Information at common law and under applicable
statues.
5.02 If the transactions available to the Fund include the ability to
originate electronic instructions to the Bank 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 Bank 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 Bank from time to time.
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ARTICLE 6. INDEMNIFICATION
6.01 The Bank shall not be responsible for, and the Fund shall indemnify
and hold the Bank 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 Bank or its agents or subcontractors
required to be taken pursuant to this Agreement; provided that
such actions are taken in good faith and without negligence or
willful misconduct.
(b) The Fund's lack of good faith, negligence or willful
misconduct which arise out of the breach of any representation
or warranty of the Fund hereunder.
(c) The reliance on or use by the Bank or its agents or
subcontractors of information, records, documents or services
which (i) are received by the Bank or its agents or
subcontractors, and (ii) have been prepared, maintained or
performed by the Fund or any other person or firm on behalf of
the Fund including but not limited to any previous transfer
agent registrar.
(d) The reliance on, or the carrying out by the Bank or its agents
or subcontractors of any instructions or requests of the Fund.
(e) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the
securities laws or regulations of any state that such Shares
be registered in such state or in violation of any stop order
or other determination or ruling by any federal agency or any
state with respect to the offer or sale of such Shares in such
State.
6.02 At any time the Bank may apply to any officer of the Fund for
instructions, and may consult with legal counsel with respect to
any matter arising in connection with the services to be performed
by the Bank under this Agreement, and the Bank and its agents or
subcontractors shall not be liable and shall be indemnified by the
Fund for any action taken or omitted by it in reliance upon such
instructions or upon the opinion of such counsel. The Bank, its
agents and subcontractors shall be protected and indemnified in
acting upon any paper or document furnished by or on behalf of the
Fund, reasonably believed to be genuine and to have been signed by
the proper person or persons, or upon any instruction, information,
data, records or documents provided the Bank or its agents or
subcontractors by telephone, in person, machine readable input,
telex, CRT data entry or other similar means authorized by the
Fund, and shall not be held to have notice thereof from the Fund.
The Bank, its agents and subcontractors shall also be protected and
indemnified in recognizing stock certificates which are reasonably
believed to bear the proper manual or facsimile signatures of the
officers of the Fund, and the proper countersignature of any former
transfer agent or former registrar, or of a co-transfer agent or
co-registrar.
6.03 In order that the indemnification provisions contained in this
Article 6 shall apply, upon the assertion of a claim for which the
Fund may be required to indemnify the Bank, the Bank shall promptly
notify the Fund in writing of such assertion, and shall keep the
Fund advised with respect to all developments concerning such
claim. The Fund shall have the option to participate with the Bank
in the defense of such claim or to defend against said claim in its
own name or in the name of the Bank. The Bank shall in no case
confess any claim or make any compromise in any case in which the
Fund may be required to indemnify the Bank except with the Fund's
prior written consent.
ARTICLE 7. STANDARD OF CARE
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7.01 The Bank shall at all times act in good faith and agrees to use its
best efforts within reasonable limits to insure the accuracy of all
services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due to
errors unless said errors are caused by its negligence, bad faith,
or willful misconduct of that of its employees.
ARTICLE 8. COVENANTS OF THE FUND AND THE BANK
8.01 The Fund shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Board of Directors
of the Fund authorizing the appointment of the Bank and the
execution and delivery of this Agreement.
(b) A copy of the Articles of Incorporation and By-Laws of the
Fund and all amendments thereto.
8.02 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of
stock certificates, check forms and facsimile signature imprinting
devices, if any; and for the preparation or use, and for keeping
account of, such certificates, forms and devices.
8.03 The Bank shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem
advisable. To the extent required by Section 31 of the Investment
Company Act of 1940, as amended, and the Rules thereunder, the Bank
agrees that all such records prepared or maintained by the Bank
relating to the services to be performed by the Bank hereunder are
the property of the Fund and will be preserved, maintained and made
available in accordance with such Section and Rules, and will be
surrendered promptly to the Fund on and in accordance with its
request.
8.04 The Bank and the Fund agree that all books, records, information
and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying
out of this Agreement shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be
requested by a governmental entity or as may be required by law.
8.05 In cases of any requests or demands for the inspection of the
Shareholder records of the Fund, the Bank will endeavor to notify
the Fund and to secure instructions from an authorized officer of
the Fund as to such inspection. The Bank reserves the right,
however, to exhibit the Shareholder records to any person whenever
it is advised by its counsel that it may be held liable for the
failure to exhibit the Shareholder records to such person.
ARTICLE 9. TERMINATION OF AGREEMENT
9.01 This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other.
9.02 Should the Fund exercise its right to terminate, all out-of- pocket
expenses associated with the movement of records and material will
be borne by the Fund. Additionally, the Bank reserves the right to
charge for any other reasonable expenses associated with such
termination and/or a charge equivalent to the average of three (3)
month's fees.
ARTICLE 10. ASSIGNMENT
10.01 Except as provided in Section 10.03 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
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10.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
10.03 The Bank may, without further consent on the part of the Fund,
subcontract for the performance hereof with (i) Boston Financial
Data Services, Inc., a Massachusetts corporation ("BFDS"), which is
duly registered as a transfer agent pursuant to Section 17A(c)(2)
of the Securities Exchange Act of 1934 ("Section 17A(c)(2)"), or
(ii) a BFDS affiliate duly registered as a transfer agent pursuant
to Section 17A(c)(2), provided, however, that the Bank shall be as
fully responsible to the Fund for the acts and omissions of any
subcontractor as it is for its own acts and omissions.
ARTICLE 11. AMENDMENT
11.01 This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution
of the Board of Directors of the Fund.
ARTICLE 12. MASSACHUSETTS LAW TO APPLY
12.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The
Commonwealth of Massachusetts.
ARTICLE 13. FORCE MAJEURE
13.01 In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its
control, or other causes reasonably beyond its control, such party
shall not be liable for damages to the other for any damages
resulting from such failure to perform or otherwise from such
causes.
ARTICLE 14. CONSEQUENTIAL DAMAGES
14.01 Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement or
for any consequential damages arising out of any act or failure to
act hereunder.
ARTICLE 15. MERGER OF AGREEMENT
15.01 This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the
subject hereof whether oral or written.
ARTICLE 16. SURVIVAL
16.01 All provisions regarding indemnification, warranty, liability and
limits thereon, and confidentiality and/or protection of
proprietary rights and trade secrets shall survive the termination
of this Agreement.
ARTICLE 17. SEVERABILITY
17.01 If any provision or provisions of this Agreement shall be held to
be invalid, unlawful, or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
ARTICLE 18. COUNTERPARTS
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18.01 This Agreement may be executed by the parties hereto on any number
of counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
The Gabelli Utilities Fund
BY: /S/ XXXXX X. XXXXXX
State Street Bank and Trust Company
BY: ___________________
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