TRANSFER AGENCY AND SERVICE AGREEMENT
between
THE GABELLI ASSET FUND
and
STATE STREET BANK AND TRUST COMPANY
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TABLE OF CONTENTS
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Page
Article 1 Terms of Appointment; Duties of the Bank............l
Article 2 Fees and Expenses...................................4
Article 3 Representations and Warranties of the Bank..........4
Article 4 Representations and Warranties of the Fund.........5
Article 5 Indemnification....................................5
Article 6 Covenants of the Fund and the Bank.................7
Article 7 Termination of Agreement...........................9
Article 8 Assignment.........................................9
Article 9 Amendment..........................................9
Article 10 Massachusetts Law to Apply........................10
Article 11 Merger of Agreement....................................10
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4
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the __________ day of ____________, 1989, by and
between The Gabelli Asset Fund, a ___________ business trust, having its
principal office and place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, 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 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank"). WHEREAS, the Fund desires to
appoint the Bank as its transfer agent, dividend disbursing agent and agent in
connection with certain other activities, and the Bank desires to accept such
appointment; 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, its transfer agent for the Fund's authorized and issued shares
of its beneficial interest ("Shares"), dividend disbursing agent and agent in
connection with any accumulation, open-account or similar plans provided to the
shareholders of the Fund ("Shareholders") and set out in the currently effective
prospectus and statement of additional information ("prospectus") of the Fund,
including without limitation any periodic investment plan or periodic withdrawal
program. 1.02 The Bank agrees that it will perform the following services: (a)
In accordance with procedures established from time to time by agreement between
the Fund and the Bank, the Bank shall: (i) Receive for acceptance, orders for
the purchase of Shares, and promptly deliver payment and appropriate
documentation therefor to the Custodian of the Fund authorized pursuant to the
Declaration of Trust of the Fund (the "Custodian"); (ii) Pursuant to purchase
orders, issue the appropriate number of Shares and hold such Shares in the
appropriate Shareholder account; (iii) Receive for acceptance redemption
requests and redemption directions and deliver the appropriate documentation
therefor to the Custodian; (iv) At the appropriate time as and when it receives
monies paid to it by the Custodian with respect to any redemption, pay over or
cause to be paid over in the appropriate manner such monies as instructed by the
redeeming Shareholders; (v) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions; (vi) Prepare and transmit
payments for dividends and distributions declared by the Fund; (vii) Maintain
records of account for and advise the Fund and its Shareholders as to the
foregoing; and (viii) Record the issuance of shares of the Fund and maintain
pursuant 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. Bank 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 functions shall be the sole responsibility of the
Fund. (b) In addition to and not in lieu of the services set forth in the above
paragraph (a), the Bank shall: (i) perform all of the customary services of a
transfer agent, dividend disbursing agent and, as relevant, agent in connection
with accumulation, open-account or similar plans (including without limitation
any periodic investment plan or periodic withdrawal program), including but not
limited to: maintaining all Shareholder accounts, preparing Shareholder meeting
lists, mailing proxies, receiving and tabulating proxies, mailing Shareholder
reports and prospectuses to current Shareholders, withholding taxes on 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 purchases and redemptions of Shares and other confirmable
transactions in Shareholder accounts, preparing and mailing activity statements
for Shareholders, and providing Shareholder account information and (ii) provide
a system which will enable the Fund to monitor the total number of Shares sold
in each State. (c) In addition, the Fund shall: (i) identify to the Bank 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 Bank 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 the reporting of
such transactions to the Fund as provided above. Procedures applicable to
certain of these services may be established from time to time by agreement
between the Fund and the Bank. Article 2 Fees and Expenses 2.01 For performance
by the Bank pursuant to this Agreement, the Fund agrees to pay the Bank an
annual maintenance fee for each Shareholder account as set out in the initial
fee schedule attached hereto. Such fees and out-of-pocket expenses and advances
identified under Section 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 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 mailing of the respective billing notice. Postage 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 business trust duly organized and existing and in
good standing under the laws of ___________________________. 4.02 It is
empowered under applicable laws and by its Declaration of Trust and By-Laws to
enter into and perform this Agreement. 4.03 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. 4.04 It is an open-end and diversified
management investment company registered under the Investment Company Act of
1940. 4.05 A registration statement under the Securities Act of 1933 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. Article 5 Indemnification 5.01 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 agent 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 refusal or
failure to comply with the terms of this Agreement, or which arise out of the
Fund's lack of good faith, negligence or willful misconduct or 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 and documents which (i) are received by the Bank or its agents or
subcontractors and furnished to it by or on behalf of the Fund, and (ii) have
been prepared and/or maintained by the Fund or any other person or firm on
behalf of the Fund. (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. 5.02 The Bank shall
indemnify and hold the Fund harmless from and against any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability arising
out of or attributable to any action or failure or omission to act by the Bank
as a result of the Bank's lack of good faith, negligence or willful misconduct.
5.03 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 machine readable input, telex, CRT data entry or
other similar means authorized by the Fund, and shall not be held to have notice
of any change of authority of any person, until receipt of written 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
registrar, or of a co-transfer agent or co-registrar. 5.04 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. 5.05
Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any act or
failure to act hereunder. 5.06 In order that the indemnification provisions
contained in this Article 5 shall apply, upon the assertion of a claim for which
either party may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such assertion, and
shall keep the other party advised with respect to all developments concerning
such claim. The party who may be required to indemnify shall have the option to
participate with the party seeking indemnification in the defense of such claim.
The party seeking indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be required to indemnify it
except with the other party's prior written consent. Article 6 Covenants of the
Fund and the Bank 6.01 The Fund shall promptly furnish to the Bank the
following: (a) A certified copy of the resolution of the Trustees of the Fund
authorizing the appointment of the Bank and the execution and delivery of this
Agreement. (b) A copy of the Declaration of Trust and By-Laws of the Fund and
all amendments thereto. 6.02 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. 6.03 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. 6.04 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 required by law. 6.05 In case 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 7 Termination of Agreement 7.01 This Agreement may be terminated by
either party upon one hundred twenty (120) days written notice to the other.
7.02 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) months' fees. Article 8 Assignment 8.01 Except as provided
in Section 8.03 below, neither this Agreement nor any rights or obligations
hereunder may be assigned by either party without the written consent of the
other party. 8.02 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns. 8.03 The
Bank may, without further consent on the part of the Fund, subcontract for the
performance hereof with (1) Boston Financial Data Services, Inc., a
Massachusetts corporation ("BFDS") which is duly registered as a transfer agent
pursuant to Section 17A(c)(1) of the Securities Exchange Act of 1934 ("Section
17A(c)(1)"), (ii) a BFDS subsidiary duly registered as a transfer agent pursuant
to Section 17A(c)(1) or (iii) a BFDS affiliate; 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 9 Amendment 9.01
This Agreement may be amended or modified by a written agreement executed by
both parties and authorized or approved by a resolution of the Trustees of the
Fund.
Article 10 Massachusetts Law to Apply 10.01 This Agreement shall be
construed and the provisions thereof interpreted under and in accordance with
the laws of The Commonwealth of Massachusetts. Article 11 Merger of Agreement
11.01 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their names and on their behalf under their seals by
and through their duly authorized officers, as of the day and year first above
written.
THE GABELLI ASSET FUND
BY: /s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
ATTEST:
/s/signature illigible
Signature Illigible
STATE STREET BANK AND TRUST COMPANY
BY: /s/signature illigible
Signature Illigible
ATTEST:
/s/signature illigible
signature illigible
