EXHIBIT 9
TRANSFER AGENCY AND SERVICE AGREEMENT
between
THE GABELLI MONEY MARKET FUNDS
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
Article 1 Terms of Appointment; Duties of the Bank 2
Article 2 Fees and Expenses 6
Article 3 Representations and Warranties of the Bank
7
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 l3
Article 8 Covenants of the Fund and the Bank 13
Article 9 Termination of Agreement 14
Article 10 Additional Funds l5
Article 11 Assignment 15
Article 12 Amendment 16
Article 13 Massachusetts Law to Apply 16
Article 14 Force Majeure 16
Article 15 Consequential Damages 16
Article 16 Merger of Agreement 17
Article 17 Counterparts 17
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 18th day of August, 1992, by and
between THE GABELLI MONEY MARKET FUNDS, a Delaware business trust,
having its principal office and place of business at Xxx Xxxxxxxxx
Xxxxxx, Xxx, Xxx Xxxx 00000-0000 (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 is authorized to issue shares in separate
series, with each such series representing interests in a separate
portfolio of securities and other assets; and
WHEREAS, the Fund intends to initially offer shares in one
series, The Gabelli U.S. Treasury Money Market Fund (each such
series, together with all other series subsequently established by
the Fund and made subject to this Agreement in accordance with
Article 8, being herein referred to as a "Portfolio", and
collectively as the "Portfolios");
WHEREAS, the Fund on behalf of the Portfolios desires to
appoint the Bank as its transfer agent, dividend disbursing agent,
custodian of certain retirement plans 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, on behalf of the Portfolios, hereby
employs and appoints the Bank to act as, and the Bank agrees to
act as its transfer agent for the authorized and issued shares of
beneficial interest of the Fund representing interests in each of
the respective Portfolios ("Shares"), dividend disbursing agent,
custodian of certain retirement plans and agent in connection with
any accumulation, open-account or similar plans 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.
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 on behalf of each of
the Portfolios, as applicable and the Bank, the Bank shall:
(i) 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");
(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
thereof to the Custodian;
(iv) In respect to the transactions in items (i),
(ii) and (iii) above, the Bank shall execute transactions directly
with broker-dealers authorized by the Fund who shall thereby be
deemed to be acting on behalf of the Fund;
(v) 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;
(vi) Effect transfers of Shares by the registered
owners thereof upon receipt of appropriate instructions;
(vii) Prepare and transmit payments for dividends and
distributions declared by the Fund on behalf of the applicable
Portfolio;
(viii) 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;
(ix) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing; and
(x) Record the issuance of Shares of the Fund and
maintain pursuant to SEC Rule 17Ad-l0(e) a record of the total
number of Shares which are authorized, based upon data provided to
it by the Fund, and issued and outstanding. The 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 neither in lieu nor in
contravention of the services set forth in the above paragraph
(a), the Bank shall: (i) 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 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, 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.
(d) Procedures as to who shall provide certain of.
these services in Article 1 may be established from time to time
by agreement between the Fund on behalf of each Portfolio and the
Bank per the attached service responsibility schedule. The Bank
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.
(e) 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 performance by the Bank pursuant to this
Agreement, the Fund agrees on behalf of each of the Portfolios 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 on behalf of each of the Portfolios 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 on behalf of the applicable
Portfolio.
2.03 The Fund agrees on behalf of each of the
Portfolios to pay all fees and reimbursable expenses within
twenty-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 Delaware.
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, as amended.
4.05 A registration statement under the Securities
Act of 1933, as amended on behalf of each of the Portfolios 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 Data Access and Proprietary Information
5.01 The Fund acknowledges that the data bases,
computer programs, screen format, report formats, interactive
design techniques, and documentation manuals furnished to the Fund
by the Bank as part of the Fund's ability to access certain
related data ("Customer Data") maintained by the Bank on data
bases under the control and ownership of the Bank ("Data Access
Services") constitute copyrighted, trade secret, or other
proprietary information (collectively, "Proprietary Information")
of substantial value to the Bank. The Fund agrees to treat all
Proprietary Information as proprietary to the Bank 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:
(a) to access Customer Data solely from locations as
may be designated in writing by the Bank and solely in accordance
with the Bank's applicable user documentation;
(b) to refrain from copying or duplicating in any
way the Proprietary Information;
(c) to 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 Bank's
instructions;
(d) to refrain from causing or allowing third-party
data required hereunder from being retransmitted to any other
computer facility or other location, except with the prior written
consent of the Bank;
(e) that the Fund shall have access only to those
authorized transactions agreed upon by the parties;
(f) to honor all 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, under federal copyright
law and under other federal or state law.
Each party shall take reasonable efforts to advise its
employees of their obligations pursuant to this Article 5. The
obligations of this Article shall survive any earlier termination
of this Agreement.
5.02 If the Fund notifies the Bank that any of the
Data Access Services do not operate in material compliance with
the most recently issued user documentation for such services, the
Bank shall endeavor in a timely manner to correct such failure.
Organizations from which the Bank 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 Bank 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 BANK EXPRESSLY DISCLAIMS ALL WARRANTIES
EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
5.03 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 of
Shares or (ii) transmit Shareholder information or other
information (such transactions constituting a "COEFI"), 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.
Article 6 Indemnification
6.01 The Bank shall not be responsible for, and the
Fund shall on behalf of the applicable Portfolio 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 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 or
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 on behalf of the applicable Portfolio.
(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 on behalf of the applicable Portfolio 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 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 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
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 on behalf of each of the
Portfolios 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.
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 required by law.
8.05 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 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 on behalf of the applicable
Portfolio(s). Additionally, the Bank reserves the right to charge
for any other reasonable expenses associated with such
termination.
Article 10 Additional Funds
10.01 In the event that the Fund establishes one or
more series of Shares in addition to The Gabelli U.S. Treasury
Money Market Fund with respect to which it desires to have the
Bank render services as transfer agent under the terms hereof, it
shall so notify the Bank in writing, and if the Bank agrees in
writing to provide such services, such series of Shares shall
become a Portfolio hereunder.
Article 11 Assignment
11.01 Except as provided in Section 11.03 below,
neither this Agreement nor any rights or obligations hereunder may
be assigned by either party without the written consent of the
other party.
11.02 This Agreement shall inure to the benefit of
and be binding upon the parties and their respective permitted
successors and assigns.
11.03 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)(l) of the Securities Exchange Act of 1934, as
amended ("Section 17A(c)(l)"), (ii) a BFDS subsidiary duly
registered as a transfer agent pursuant to Section 17A(C)(l) 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 12 Amendment
12.01 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 13 Massachusetts Law to Apply
13.01 This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the
laws of the Commonwealth of Massachusetts.
Article 14 Force Majeure
14.01 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 15 Consequential Damages
15.01 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 16 Merger of Agreement
16.01 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.
Article 17 Counterparts
17.01 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 MONEY MARKET FUNDS
BY: /s/ Illigible
Illigible
ATTEST: /s/ Illigible
Illigible
STATE STREET BANK AND TRUST COMPANY
BY: /s/ Illigible
Illigible
/s/ Illigible
Illigible
Senior Vice President
ATTEST: /s/ Illigible
Illigible
Assistant Secretary
STATE STREET BANK AND TRUST COMPANY
TRANSFER AGENT FEE SCHEDULE
THE GABELLI MONEY MARKET FUND
General - Fees are based on annual per shareholder account charges
for account maintenance plus out-of-pocket expenses. Annual
maintenance charges for various kinds of mutual funds are given
below. There is a minimum charge per fund on the following
schedule:
One Fund $5,000/Month per Fund
Two Funds $3,000/Month Per Fund
Three to Five Funds $2,500/Month Per
Fund
Each Fund over the Five $1,500/Month Per Fund
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.
Open Account -
1992 1993
The Gabelli Money Market Fund $10.00
$13.00
The above rates are to be incremented $0.25 per dividend payment
cycle, (e.g., monthly dividend, add $3.00 to the annual
maintenance fee), daily dividend funds add $3.00 to the annual
maintenance fee.
Closed Account $ 1.20
Telephone Calls $ 1.50
Investor Fees (optional) $ 1.80
(per Investor Record
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.
Minimum waived for initial 3 months of operation.
THE GABELLI MONEY MARKET FUND STATE STREET BANK AND TRUST
CO.
By: By:
Title: Title:
Date: Date:
11
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