Exhibit (k)
REGISTRAR,
TRANSFER AGENCY AND SERVICE AGREEMENT
between
THE GABELLI GLOBAL UTILITY & INCOME TRUST
and
TABLE OF CONTENTS
ARTICLE 1 Terms of Appointment; Duties of the Registrar.................................3
ARTICLE 2 Fees and Expenses.............................................................6
ARTICLE 3 Representations and Warranties of the Registrar...............................6
ARTICLE 4 Representations and Warranties of the Fund....................................7
ARTICLE 5 Data Access and Proprietary Information.......................................8
ARTICLE 6 Indemnification..............................................................10
ARTICLE 7 Standard of Care.............................................................12
ARTICLE 8 Covenants of the Fund and the Registrar......................................13
ARTICLE 9 Termination of Agreement.....................................................14
ARTICLE 10 Assignment...................................................................15
ARTICLE 11 Amendment....................................................................15
ARTICLE 12 [ ] Law to Apply.......................................16
ARTICLE 13 Force Majeure................................................................16
ARTICLE 14 Consequential Damages........................................................16
ARTICLE 15 Merger of Agreement..........................................................16
ARTICLE 16 Survival.....................................................................17
ARTICLE 17 Severability.................................................................17
ARTICLE 18 Counterparts.................................................................17
REGISTRAR, TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the day of May __, 2004, by and between The
Gabelli Global Utility & Income Trust, a Delaware statutory trust, having its
principal office and place of business at Xxx Xxxxxxxxx Xxxxxx, Xxx, Xxx Xxxx,
XX 00000 (the "Fund"), and [ ], N.A., located at [ ](the "Registrar").
WHEREAS, the Fund desires to appoint the Registrar as its registrar,
transfer agent, dividend disbursing agent and agent in connection with certain
other activities and the Registrar desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE 1 Terms of Appointment; Duties of the Registrar
1.01 Subject to the terms and conditions set forth in this
Agreement, the Fund hereby employs and appoints the Registrar to act as, and
the Registrar agrees to act as registrar, transfer agent for the Fund's
authorized and issued shares of its common stock ("Shares"), dividend
disbursing agent and agent in connection with any dividend reinvestment plan as
set out in the prospectus of the Fund, corresponding to the date of this
Agreement.
1.02 The Registrar agrees that it will perform the
following services:
(a) In accordance with procedures established from time
to time by agreement between the Fund and the Registrar, the Registrar shall:
(i) Issue and record the appropriate number of
Shares as authorized and hold such shares in the
appropriate Shareholder account (ii) Effect
transfers of Shares by the registered owners thereof
upon receipt of appropriate documentation; (iii)
Prepare and transmit payments for dividends and
distributions declared by the Fund; (iv) Act as
agent for Shareholders pursuant to the dividend
reinvestment and cash purchase plan as amended from
time to time in accordance with the terms of the
agreement to be entered into between the
Shareholders and the Registrar in substantially the
form attached as Exhibit hereto; (v) Issue
replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon
receipt by the Registrar of indemnification
satisfactory to the Registrar and protecting the
Registrar and the Fund, and the Registrar at its
option, may issue replacement certificates in place
of mutilated stock certificates upon presentation
thereof and without such indemnity.
(b) In addition to and neither in lieu nor in
contravention of the services set forth in the above paragraph (a), the
Registrar shall: (i) perform all of the customary services of a registrar,
transfer agent, dividend disbursing agent and agent of the dividend
reinvestment anc cash purchase plan as described in Article 1 consistent with
those requirements in effect as of the date of this agreement. The detailed
definition, frequency, limitations and associated costs (if any) set out in the
attached fee schedule, include but are not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing proxies, and
mailing Shareholder reports to current Shareholders, withholding taxes on U.S.
resident and non-resident alien accounts where applicable, preparing and filing
U.S. Treasury Department Forms 1099 and other appropriate forms required with
respect to dividends and distributions by federal authorities for all
registered Shareholders.
(c) The Registrar shall provide additional services on
behalf of the Fund (i.e., escheatment services) which may be agreed upon in
writing between the Fund and the Registrar.
ARTICLE 2 Fees and Expenses
2.01 For the performance by the Registrar pursuant to this
Agreement, the Fund agrees to pay the Registrar an annual maintenance fee as
set out in the initial fee schedule attached hereto. Such fees and
out-of-pocket expenses and advances identified under Section 2.02 below may be
changed from time to time subject to mutual written agreement between the Fund
and the Registrar.
2.02 In addition to the fee paid under Section 2.01 above,
the Fund agrees to reimburse the Registrar for out-of-pocket expenses,
including but not limited to confirmation production, postage, forms,
telephone, microfilm, microfiche, tabulating proxies, records storage, or
advances incurred by the Registrar for the items set out in the fee schedule
attached hereto. In addition, any other expenses incurred by the Registrar at
the request or with the consent of the Fund, will be reimbursed by the Fund.
2.03 The Fund agrees to pay all fees and reimbursable
expenses within five days following the receipt of the respective billing
notice. Postage and the cost of materials for mailing of dividends, proxies,
Fund reports and other mailings to all Shareholder accounts shall be advanced
to the Registrar by the Fund at least seven (7) days prior to the mailing date
of such materials.
ARTICLE 3 Representations and Warranties of the Registrar
The Registrar represents and warrants to the Fund that:
3.01 It is a trust company duly organized and existing and
in good standing under the laws of [ ].
3.02 It is duly qualified to carry on its business
in [ ].
3.03 It is empowered under applicable laws and by its
Charter and By-Laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken
to authorize it to enter into and perform this Agreement.
3.05 It has and will continue to have access to the
necessary facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
ARTICLE 4 Representations and Warranties of the Fund
The Fund represents and warrants to the Registrar that:
4.01 It is a trust organized and existing and in good
standing under the laws of Delaware.
4.02 It is empowered under applicable laws and by its
Agreement and Declaration of Trust and By-Laws to enter into and perform this
Agreement
4.03 All proceedings required by said Agreement and
Declaration of Trust and By-Laws have been taken to authorize it to enter into
and perform this Agreement.
4.04 It is a closed-end, non-diversified investment
company registered under the Investment Company Act of 1940, as amended.
4.05 To the extent required by federal securities laws a
registration statement under the Securities Act of 1933, as amended is
currently effective and appropriate state securities law filings have been made
with respect to all Shares of the Fund being offered for sale; information to
the contrary will result in immediate notification to the Registrar.
4.06 It shall make all required filings under federal and
state securities laws.
ARTICLE 5 Data Access and Proprietary Information
5.01 The Fund acknowledges that the data bases, computer
programs, screen formats, interactive design techniques, and other information
furnished to the Fund by the Registrar are provided solely in connection with
the services rendered under this Agreement and constitute copyrighted trade
secrets or proprietary information of substantial value to the Registrar. Such
databases, programs, formats, designs, techniques and other information are
collectively referred to below as "Proprietary Information." The Fund agrees
that it shall treat all Proprietary Information to any person or organization
except as expressly permitted hereunder. The Fund agrees for itself and its
employees and agents:
(a) to use such programs and databases (i) solely on the
Fund computers, or (ii) solely from equipment at the locations agreed to
between the Fund and the Registrar and (iii) in accordance with the Registrar's
applicable user documentation;
(b) to refrain from copying or duplicating in any way
(other than in the normal course of performing processing on the Fund's
computers) any part of any Proprietary Information;
(c) to refrain from obtaining unauthorized access to any
programs, data or other information not owned by the Fund, and if such access
is accidentally obtained, to respect and safeguard the same Proprietary
Information;
(d) to refrain from causing or allowing information
transmitted from the Registrar's computer to the Funds' terminal to be
retransmitted to any other computer terminal or other device except as
expressly permitted by the Registrar, (such permission not to be unreasonably
withheld);
(e) that the Fund shall have access only to those
authorized transactions as agreed to between the Fund and the Registrar; and
(f) to honor reasonable written requests made by the
Registrar to protect at the Registrar's expense the rights of the Registrar in
Proprietary Information at common law and under applicable statues.
5.02 If the transactions available to the Fund include the
ability to originate electronic instructions to the Registrar in order to (i)
effect the transfer or movement of cash or Shares or (ii) transmit Shareholder
information or other information, then in such event the Registrar shall be
entitled to rely on the validity and authenticity of such instruction without
undertaking any further inquiry as long as such instruction is undertaken in
conformity with security procedures established by the Registrar from time to
time.
ARTICLE 6 Indemnification
6.01 The Registrar shall not be responsible for, and the
Fund shall indemnify and hold the Registrar harmless from and against, any and
all losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to:
(a) All actions of the Registrar or its agents or
subcontractors required to be taken pursuant to this Agreement; provided that
such actions are taken in good faith and without negligence or willful
misconduct.
(b) The Fund's lack of good faith, negligence or willful
misconduct which arise out of the breach of any representation or warranty of
the Fund hereunder.
(c) The reliance on or use by the Registrar or its agents
or subcontractors of information, records, documents or services which (i) are
received by the Registrar or its agents or subcontractors, and (ii) have been
prepared, maintained or performed by the Fund or any other person or firm on
behalf of the Fund including but not limited to any previous transfer agent
registrar.
(d) The reliance on, or the carrying out by the Registrar
or its agents or subcontractors of any instructions or requests of the Fund.
(e) The offer or sale of Shares in violation of any
requirement under the federal securities laws or regulations or the securities
laws or regulations of any state that such Shares be registered in such state
or in violation of any stop order or other determination or ruling by any
federal agency or any state with respect to the offer or sale of such Shares in
such State.
6.02 At any time the Registrar may apply to any officer of
the Fund for instructions, and may consult with legal counsel with respect to
any matter arising in connection with the services to be performed by the
Registrar under this Agreement, and the Registrar and its agents or
subcontractors shall not be liable and shall be indemnified by the Fund for any
action taken or omitted by it in reliance upon such instructions or upon the
opinion of such counsel. The Registrar, its agents and subcontractors shall be
protected and indemnified in acting upon any paper or document furnished by or
on behalf of the Fund, reasonably believed to be genuine and to have been
signed by the proper person or persons, or upon any instruction, information,
data, records or documents provided the Registrar or its agents or
subcontractors by telephone, in person, machine readable input, telex, CRT data
entry or other similar means authorized by the Fund, and shall not be held to
have notice thereof from the Fund. The Registrar, its agents and subcontractors
shall also be protected and indemnified in recognizing stock certificates which
are reasonably believed to bear the proper manual or facsimile signatures of
the officers of the Fund, and the proper countersignature of any former
transfer agent or former registrar, or of a co-transfer agent or co-registrar.
6.03 In order that the indemnification provisions
contained in this Article 6 shall apply, upon the assertion of a claim for
which the Fund may be required to indemnify the Registrar, the Registrar shall
promptly notify the Fund in writing of such assertion, and shall keep the Fund
advised with respect to all developments concerning such claim. The Fund shall
have the option to participate with the Registrar in the defense of such claim
or to defend against said claim in its own name or in the name of the
Registrar. The Registrar shall in no case confess any claim or make any
compromise in any case in which the Fund may be required to indemnify the
Registrar except with the Fund's prior written consent.
ARTICLE 7 Standard of Care
7.01 The Registrar shall at all times act in good faith
and agrees to use its best efforts within reasonable limits to insure the
accuracy of all services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due to errors unless
said errors are caused by its negligence, bad faith, or willful misconduct of
that of its employees.
ARTICLE 8 Covenants of the Fund and the Registrar
8.01 The Fund shall promptly furnish to the Registrar the
following:
(a) A certified copy of the resolution of the Board of
Directors of the Fund authorizing the appointment of the Registrar and the
execution and delivery of this Agreement.
(b) A copy of the Articles of Incorporation and By-Laws of
the Fund and all amendments thereto.
8.02 The Registrar hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Fund for safekeeping of
stock certificates, check forms and facsimile signature imprinting devices, if
any; and for the preparation or use, and for keeping account of, such
certificates, forms and devices.
8.03 The Registrar shall keep records relating to the
services to be performed hereunder, in the form and manner as it may deem
advisable. To the extent required by Section 31 of the Investment Company Act
of 1940, as amended, and the Rules thereunder, the Registrar agrees that all
such records prepared or maintained by the Registrar relating to the services
to be performed by the Registrar hereunder are the property of the Fund and
will be preserved, maintained and made available in accordance with such
Section and Rules, and will be surrendered promptly to the Fund on and in
accordance with its request.
8.04 The Registrar and the Fund agree that all books,
records, information and data pertaining to the business of the other party
which are exchanged or received pursuant to the negotiation or the carrying out
of this Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be requested by a governmental
entity or as may be required by law.
8.05 In cases of any requests or demands for the
inspection of the Shareholder records of the Fund, the Registrar will endeavor
to notify the Fund and to secure instructions from an authorized officer of the
Fund as to such inspection. The Registrar reserves the right, however, to
exhibit the Shareholder records to any person whenever it is advised by its
counsel that it may be held liable for the failure to exhibit the Shareholder
records to such person.
ARTICLE 9 Termination of Agreement
9.01 This Agreement may be terminated by either party upon
one hundred twenty (120) days written notice to the other.
9.02 Should the Fund exercise its right to terminate, all
out- of-pocket expenses associated with the movement of records and material
will be borne by the Fund. Additionally, the Registrar reserves the right to
charge for any other reasonable expenses associated with such termination
and/or a charge equivalent to the average of three (3) month's fees.
ARTICLE 10 Assignment
10.01 Except as provided in Section 10.03 below, neither
this Agreement nor any rights or obligations hereunder may be assigned by
either party without the written consent of the other party.
10.02 This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and assigns.
10.03 The Registrar may, without further consent on the
part of the Fund, subcontract for the performance hereof with (i) Boston
Financial Data Services, Inc., a Massachusetts corporation ("BFDS"), which is
duly registered as a transfer agent pursuant to Section 17A(c)(2) of the
Securities Exchange Act of 1934 ("Section 17A(c)(2)"), or (ii) a BFDS affiliate
duly registered as a transfer agent pursuant to Section 17A(c)(2), provided,
however, that the Registrar shall be as fully responsible to the Fund for the
acts and omissions of any subcontractor as it is for its own acts and
omissions.
ARTICLE 11 Amendment
11.01 This Agreement may be amended or modified by a
written agreement executed by both parties and authorized or approved by a
resolution of the Board of Directors of the Fund.
ARTICLE 12 Massachusetts Law to Apply
12.01 This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of The Commonwealth
of Massachusetts.
ARTICLE 13 Force Majeure
13.01 In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to perform or
otherwise from such causes.
ARTICLE 14 Consequential Damages
14.01 Neither party to this Agreement shall be liable to
the other party for consequential damages under any provision of this Agreement
or for any consequential damages arising out of any act or failure to act
hereunder.
ARTICLE 15 Merger of Agreement
15.01 This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject hereof whether oral or written.
ARTICLE 16 Survival
16.01 All provisions regarding indemnification, warranty,
liability and limits thereon, and confidentiality and/or protection of
proprietary rights and trade secrets shall survive the termination of this
Agreement.
ARTICLE 17 Severability
17.01 If any provision or provisions of this Agreement
shall be held to be invalid, unlawful, or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired.
ARTICLE 18 Counterparts
18.01 This Agreement may be executed by the parties hereto
on any number of counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
The Gabelli Global Utility
& Income Trust
BY:______________________________
[Registrar]
BY:______________________________
