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EXHIBIT 2(j)
CUSTODY AGREEMENT
AGREEMENT dated as of August 12, 1986 between THE GABELLI EQUITY TRUST
INC. (the "Fund"), a Maryland Corporation, having its principal office and place
of business at 0 Xxxxx Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, and BOSTON
SAFE DEPOSIT AND TRUST COMPANY (the "Custodian"), a Massachusetts trust company
with its principal place of business at Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000.
W I T N E S S E T H:
That for and in consideration of the mutual promises hereinafter set
forth, the Fund and the Custodian agree as follows:
1. Definitions.
Whenever used in this Agreement or in any Schedules to
this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
(a) "Authorized Person" shall be deemed to include the President,
and any Vice President, the Secretary, the Treasurer, or any
other person, whether or not any such person is an officer or
employee of the Fund, duly authorized by the Board of Directors
of the Fund to give Oral Instructions and Written Instructions on
behalf of the Fund and listed in the certification annexed hereto
as Appendix A or such other certification as may be received by
the Custodian from time to time.
(b) "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency
Securities, its successor or successors and its nominee or
nominees.
(c) "Certificate" shall mean any notice, instruction or other
instrument in writing, authorized or required by this Agreement
to be given to the Custodian, which is actually received by the
Custodian and signed on behalf of the Fund by any two Authorized
Persons or any two officers thereof.
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(d) "Articles of Incorporation" shall mean the Articles of
Incorporation of the Fund dated May 20, 1986 as the same may be
amended from time to time.
(e) "Depository" shall mean The Depository Trust Company ("DTC"),
a clearing agency registered with the Securities and Exchange
Commission under Section 17(a) of the Securities Exchange Act of
1934, as amended, its successor or successors and its nominee or
nominees, in which the Custodian is hereby specifically
authorized to make deposits. The term "Depository" shall further
mean and include any other person to be named in a Certificate
authorized to act as a depository under the 1940 Act, its
successor or successors and its nominee or nominees.
(f) "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest
and principal by the Government of the United States or agencies
or instrumentalities thereof, commercial paper, bank certificates
of deposit, bankers, acceptances and short-term corporate
obligations, where the purchase or sale of such securities
normally requires settlement in federal funds on the same day as
such purchase or sale, and repurchase and reverse repurchase
agreements with respect to any of the foregoing types of
securities.
(g) "Oral Instructions" shall mean verbal instructions actually
received by the Custodian from a person reasonably believed by
the Custodian to be an Authorized Person.
(h) "Portfolio" refers to any separate and distinct portfolio as
may from time to time be created and designated by the Fund in
accordance with the provisions of the Articles of Incorporation.
Should the Fund have only one Portfolio, then for purposes of
this Agreement, the term "Portfolio" should be read as the
"Fund."
(i) "Prospectus" shall mean the Fund's current prospectus and
statement of additional information relating to the registration
of the Fund's Shares under the Securities Act of 1933, as
amended.
(j) "Shares" refers to the shares of common stock, $.001 par
value per share of the Fund.
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(k) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and
other securities and investments from time to time owned by each
Portfolio.
(l) "Transfer Agent" shall mean the person which performs the
transfer agent, dividend disbursing agent and shareholder
servicing agent functions for the Fund.
(m) "Written Instructions" shall mean a written communication
actually received by the Custodian from a person reasonably
believed by the Custodian to be an Authorized Person by any
system whereby the receiver of such communication is able to
verify through codes or otherwise with a reasonable degree of
certainty the authenticity of the sender of such communication.
(n) The "1940 Act" refers to the Investment Company Act of 1940,
and the Rules and Regulations thereunder, all as amended from
time to time.
2. Appointment of Custodian.
(a) The Fund hereby constitutes and appoints the Custodian as
custodian of all the Securities and moneys at the time owned by
or in the possession of the Fund and specifically allocated to a
Portfolio during the period of this Agreement.
(b) The Custodian hereby accepts appointment as such custodian
for each Portfolio and agrees to perform the duties thereof as
hereinafter set forth.
3. Compensation.
(a) The Fund will compensate the Custodian for its services
rendered under this Agreement in accordance with the fees set
forth in the Fee Schedule annexed hereto as Schedule A and
incorporated herein for the existing Portfolios. Such Fee
Schedule does not include out-of-pocket disbursements of the
Custodian for which the Custodian shall be entitled to xxxx
separately. Out-of-pocket disbursements shall include, but shall
not be limited to, the items specified in the Schedule
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of out-of-pocket charges annexed hereto as Schedule B and
incorporated herein, which schedule may be modified by the
Custodian upon not less than thirty days prior written notice
to the Fund.
(b) The parties hereto will agree upon the compensation for
acting as custodian for any Portfolio hereafter established and
designated, and at the time that the Custodian commences serving
as such for said Portfolio, such agreement shall be reflected in
a Fee Schedule for that Portfolio, dated and signed by an officer
of each party hereto, which shall be attached to Schedule A of
this Agreement.
(c) Any compensation agreed to hereunder may be adjusted from
time to time by attaching to Schedule A of this Agreement a
revised Fee Schedule, dated and signed by an Authorized Officer
of each party hereto.
(d) The Custodian will xxxx the Fund for each Portfolio as soon
as practicable after the end of each calendar month, and said
xxxxxxxx will be detailed in accordance with the Fee Schedule for
each Portfolio. The Fund will promptly pay to the Custodian the
amount of such billing.
4. Custody of Cash and Securities.
(a) Receipt and Holding of Assets. The Fund will deliver or cause
to be delivered to the Custodian all Securities and moneys owned
by it at any time during the period of this Agreement and shall
specify the Portfolio to which the Securities and moneys are to
be specifically allocated. The Custodian will not be responsible
for such Securities and moneys until actually received by it. The
Fund shall instruct the Custodian from time to time in its sole
discretion, by means of a Certificate, or, in connection with the
purchase or sale of Money Market Securities, by means of Oral
Instructions or a Certificate, as to the manner in which and in
what amounts Securities and moneys of a Portfolio are to be
deposited on behalf of such Portfolio in the Book-Entry System or
the Depository and specifically allocated on the books of the
Custodian to such Portfolio; provided, however, that prior to the
deposit of Securities of a Portfolio in the Book-Entry System or
the Depository, including a deposit in connection with the
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settlement of a purchase or sale, the Custodian shall have
received a Certificate specifically approving such deposits by
the Custodian in the Book-Entry System or the Depository.
Securities and moneys of the Fund deposited in the Book-Entry
System or the Depository will be represented in accounts which
include only assets held by the Custodian for customers,
including but not limited to accounts in which the Custodian acts
in a fiduciary or representative capacity.
(b) Accounts and Disbursements. The Custodian shall establish and
maintain a separate account for each Portfolio and shall credit
to the separate account of each Portfolio all moneys received by
it for the account of such Portfolio and shall disburse the same
only:
1. In payment for Securities purchased for such
Portfolio, as provided in Section 5 hereof;
2. In payment of dividends or distributions with respect
to the Shares of such Portfolio, as provided in Section 7
hereof;
3. In payment of original issue or other taxes with
respect to the Shares of such Portfolio, as provided in
Section 8 hereof;
4. In payment for Shares which have been redeemed by such
Portfolio, as provided in Section 8 hereof;
5. Pursuant to Certificates, or with respect to Money
Market Securities, Oral Instructions or Certificates,
setting forth the name of such Portfolio, the name and
address of the person to whom the payment is to be made,
the amount to be paid and the purpose for which payment
is to be made; or
6. In payment of fees and in reimbursement of the expenses
and liabilities of the Custodian attributable to such
Portfolio, as provided in Section 12(h) hereof.
(c) Confirmation and Statements. Promptly after the close of
business on each day, the Custodian shall furnish the Fund with
confirmations and a summary of all transfers to or from the
account of each Portfolio during said day. Where securities
purchased by a
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Portfolio are in a fungible bulk of securities registered in the
name of the Custodian (or its nominee) or shown on the
Custodian's account on the books of the Depository or the
Book-Entry System, the Custodian shall by book entry or
otherwise identify the quantity of those securities belonging to
such Portfolio. At least monthly, the Custodian shall furnish
the Fund with a detailed statement of the Securities and moneys
held for each Portfolio under this Agreement.
(d) Registration of Securities and Physical Separation. All
Securities held for a Portfolio which are issued or issuable
only in bearer form, except such Securities as are held in the
Book-Entry System, shall be held by the Custodian in that form;
all other Securities held for a Portfolio may be registered in
the name of that Portfolio, in the name of any duly appointed
registered nominee of the Custodian as the Custodian may from
time to time determine, or in the name of the Book-Entry System
or the Depository or their successor or successors, or their
nominee or nominees. The Fund reserves the right to instruct the
Custodian as to the method of registration and safekeeping of the
Securities of each Portfolio. The Fund agrees to furnish to the
Custodian appropriate instruments to enable the Custodian to
hold or deliver in proper form for transfer, or to register in
the name of its registered nominee or in the name of the
Book-Entry System or the Depository, any Securities which it may
hold for the account of a Portfolio and which may from time to
time be registered in the name of a Portfolio. The Custodian
shall hold all such Securities specifically allocated to a
Portfolio which are not held in the Book-Entry System or the
Depository in a separate account for such Portfolio in the name
of such Portfolio physically segregated at all times from those
of any other person or persons.
(e) Segregated Accounts. Upon receipt of a Certificate the
Custodian will establish segregated accounts on behalf of any
Portfolio or Portfolios to hold liquid or other assets as it
shall be directed by a Certificate and shall increase or decrease
the assets in such Segregated Account only as it shall be
directed by a subsequent Certificate.
(f) Collection of Income and Other Matters Affecting Securities.
Unless otherwise instructed to the contrary by a Certificate, the
Custodian by itself, or through the use of the Book-Entry System
or
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the Depository with respect to Securities therein deposited,
shall with respect to all Securities held for a Portfolio in
accordance with this Agreement:
1. Collect all income due or payable;
2. Present for payment and collect the amount payable upon
all Securities which may mature or be called, redeemed or
retired, or otherwise become payable;
3. Surrender Securities in temporary form for definitive
Securities;
4. Execute any necessary declarations or certificates of
ownership under the Federal income tax laws or the laws or
regulations of any other taxing authority now or hereafter
in effect; and
5. Hold directly, or through the Book-Entry System or the
Depository with respect to Securities therein deposited,
for the account of each Portfolio all rights and similar
Securities issued with respect to any Securities held by
the Custodian hereunder for each Portfolio.
(g) Delivery of Securities and Evidence of Authority. Upon
receipt of a Certificate and not otherwise, except for
subparagraphs 5, 6, 7, and 8 which may be effected by Oral or
Written Instructions and confirmed by Certificates, the
Custodian, directly or through the use of the Book-Entry System
or the Depository, shall:
1. Execute and deliver or cause to be executed and
delivered to such persons as may be designated in such
Certificate proxies, consents, authorizations, and any
other instruments whereby the authority of the Fund as
owner of any Securities may be exercised;
2. Deliver or cause to be delivered any Securities held
for a Portfolio in exchange for other Securities or cash
issued or paid in connection with the liquidation,
reorganization,
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refinancing, merger, consolidation or recapitalization of
any corporation, or the exercise of any conversion
privilege;
3. Deliver or cause to be delivered any Securities held
for a Portfolio to any protective committee,
reorganization committee or other person in connection
with the reorganization, refinancing, merger,
consolidation or recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this
Agreement in the separate account for each Portfolio such
certificates of deposit, interim receipts or other
instruments or documents as may be issued to it to
evidence such delivery;
4. Make or cause to be made such transfers or exchanges of
the assets specifically allocated to the separate account
of a Portfolio and take such other steps as shall be
stated in said Certificate to be for the purpose of
effectuating any duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization
of the Fund;
5. Deliver Securities owned by any Portfolio upon sale of
such Securities for the account of such Portfolio pursuant
to Section 5;
6. Deliver Securities owned by any Portfolio upon the
receipt of payment in connection with any repurchase
agreement related to such Securities entered into by such
Portfolio;
7. Deliver Securities owned by any Portfolio to the issuer
thereof or its agent when such Securities are called,
redeemed, retired or otherwise become payable; provided,
however, that in any such case the cash or other
consideration is to be delivered to the Custodian;
8. Deliver Securities owned by any Portfolio for delivery
in connection with any loans of securities made by such
Portfolio but only against receipt of adequate collateral
as agreed upon from time to time by the Custodian and the
Fund
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which may be in the form of cash or obligations issued by
the United States government, its agencies or
instrumentalities;
9. Deliver Securities owned by any Portfolio for delivery
as security in connection with any borrowings by such
Portfolio requiring a pledge of Portfolio assets, but
only against receipt of amounts borrowed;
10. Deliver Securities owned by any Portfolio upon receipt
of Written Instructions from such Portfolio for delivery
to the Transfer Agent or to the holders of Shares in
connection with distributions in kind, as may be described
from time to time in the Fund's Prospectus, in
satisfaction of requests by holders of Shares for
repurchase or redemption;
11. Deliver Securities owned by any Portfolio as
collateral in connection with short sales by that
Portfolio of common stock for which such Portfolio owns
the stock or owns preferred stocks or debt securities
convertible or exchangeable, without payment of further
consideration, into shares of the common stock sold short;
12. Deliver Securities owned by any Portfolio for any
purpose expressly permitted by and in accordance with
procedures described in the Fund's Prospectus; and
13. Deliver Securities owned by any Portfolio for any
other proper business purpose, but only upon receipt of,
in addition to Written Instructions, a certified copy of a
resolution of the Board of Directors signed by an
Authorized Person and certified by the Secretary of the
Fund, specifying the Securities to be delivered, setting
forth the purpose for which such delivery is to be made,
declaring such purpose to be a proper business purpose,
and naming the person or persons to whom delivery of such
Securities shall be made.
(h) Endorsement and Collection of Checks, Etc. The Custodian is
hereby authorized to endorse and collect all checks, drafts or
other orders for the payment of money received by the Custodian
for the account of a Portfolio.
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5. Purchase and Sale of Investments of the Portfolios.
(a) Promptly after each purchase of Securities for a Portfolio,
the Fund shall deliver to the Custodian (i) with respect to each
purchase of Securities which are not Money Market Securities, a
Certificate, and (ii) with respect to each purchase of Money
Market Securities, either a Certificate or Oral Instructions, in
either case specifying with respect to each purchase: (1) the
name of the Portfolio to which such Securities are to be
specifically allocated; (2) the name of the issuer and the title
of the Securities; (3) the number of shares or the principal
amount purchased and accrued interest, if any; (4) the date of
purchase and settlement; (5) the purchase price per unit; (6)
the total amount payable upon such purchase; (7) the name of the
person from whom or the broker though whom the purchase was made,
if any; (8) whether or not such purchase is to be settled through
the Book-Entry System or the Depository; and (9) whether the
Securities purchased are to be deposited in the Book-Entry System
or the Depository. The Custodian shall receive all Securities
purchased by or for a Portfolio and upon receipt of such
Securities shall pay out of the moneys held for the account of
such Portfolio the total amount payable upon such purchase,
provided that the same conforms to the total amount payable as
set forth in such Certificate or Oral Instructions.
(b) Promptly after each sale of Securities of a Portfolio, the
Fund shall deliver to the Custodian (i) with respect to each sale
of Securities which are not Money Market Securities, a
Certificate, and (ii) with respect to each sale of Money Market
Securities, either a Certificate or Oral Instructions, in either
case specifying with respect to such sale: (1) the name of the
Portfolio to which the Securities sold were specifically
allocated; (2) the name of the issuer and the title of the
Securities; (3) the number of shares or principal amount sold,
and accrued interest, if any; (4) the date of sale; (5) the
sale price per unit; (6) the total amount payable to the
Portfolio upon such sale; (7) the name of the broker through
whom or the person to whom the sale was made; and (8) whether
or not such sale is to be settled through the Book-Entry System
or the Depository. The Custodian shall deliver or cause to be
delivered the Securities to the broker or other person
designated by the Fund upon receipt of the total amount payable
to such Portfolio upon such sale, provided that the same
conforms to the total amount
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payable to such Portfolio as set forth in such Certificate or
such Oral Instructions. Subject to the foregoing, the Custodian
may accept payment in such form as shall be satisfactory to it,
and may deliver Securities and arrange for payment in accordance
with the customs prevailing among dealers in Securities.
6. Lending of Securities.
If the Fund or any Portfolio is permitted by the terms of its
Articles of Incorporation and as disclosed in its Prospectus to
lend Securities specifically allocated to that Portfolio, within
24 hours after each loan of Securities, the Fund shall deliver to
the Custodian Written Instructions specifying with respect to
each such loan: (a) the Portfolio to which the loaned Securities
are specifically allocated; (b) the name of the issuer and the
title of the Securities; (c) the number of shares or the
principal amount loaned; (d) the date of loan and delivery; (e)
the total amount to be delivered to the Custodian, and
specifically allocated to such Portfolio against the loan of the
Securities, including the amount of cash collateral and the
premium, if any, separately identified; (f) the name of the
broker, dealer or financial institution to which the loan was
made; and (g) whether the Securities loaned are to be delivered
through the Book-Entry System or the Depository.
Promptly after each termination of a loan of Securities
specifically allocated to a Portfolio, the Fund shall deliver to
the
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Custodian Written Instructions specifying with respect to each
such loan termination and return of Securities: (a) the name of
the Portfolio to which such loaned Securities are specifically
allocated; (b) the name of the issuer and the title of the
Securities to be returned; (c) the number of shares or the
principal amount to be returned; (d) the date of termination;
(e) the total amount to be delivered by the Custodian (including
the cash collateral for such Securities minus any offsetting
credits as described in said Written Instructions); (f) the name
of the broker, dealer or financial institution from which the
Securities will be returned; and (g) whether such return is to
be effected through the Book-Entry System or the Depository. The
Custodian shall receive all Securities returned from the broker,
dealer or financial institution to which such Securities were
loaned and upon receipt thereof shall pay, out of the moneys
specifically allocated to such Portfolio, the total amount
payable upon such return of Securities as set forth in the
Written Instructions. Securities returned to the Custodian shall
be held as they were prior to such loan.
7. Payment of Dividends or Distributions.
(a) The Fund shall furnish to the Custodian the resolution of the
Board of Directors of the Fund certified by the Secretary (i)
authorizing the declaration of dividends with respect to a
Portfolio on a specified periodic basis and authorizing the
Custodian to rely on Oral or Written Instructions specifying the
date of the declaration of such dividend or distribution, the
date of payment thereof, the record date as of which shareholders
entitled to payment shall be determined, the amount payable per
share to the shareholders of record as of the record date and the
total amount payable to the Transfer Agent on the payment date,
or (ii) setting forth the date of declaration of any dividend or
distribution by a Portfolio, the date of payment thereof, the
record date as of which shareholders entitled to payment shall be
determined, the amount payable per share to the shareholders of
record as of the record date and the total amount payable to the
Transfer Agent on the payment date.
(b) Upon the payment date specified in such resolution, Oral
Instructions, or Written Instructions, as the case may be, the
Custodian shall pay out the moneys specifically allocated to and
held
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for the account of the appropriate Portfolio the total amount
payable to the Transfer Agent of the Fund.
8. Sale and Redemption of Shares of the Portfolios.
(a) Whenever the Fund shall sell any Shares of a Portfolio, the
Fund shall deliver or cause to be delivered to the Custodian a
Certificate duly specifying:
1. The name of the Portfolio whose Shares were sold;
2. The number of Shares sold, trade date, and price; and
3. The amount of money to be received by the Custodian for
the sale of such Shares and specifically allocated to such
Portfolio.
The Custodian understands and agrees that the Certificate
may be furnished subsequent to the purchase of Shares of a
Portfolio and that the information contained therein will be
derived from the sales of Shares of such Portfolio as reported to
the Fund by the Transfer Agent.
(b) Upon receipt of such money from the Transfer Agent, the
Custodian shall credit such money to the separate account of the
Portfolio specified in subparagraph (1) of paragraph (a) of this
Section 8.
(c) Upon issuance of any Shares of a Portfolio in accordance with
the foregoing provisions of this Section 8, the Custodian shall
pay, out of the moneys specifically allocated and held for the
account of such Portfolio, all original issue or other taxes
required to be paid in connection with such issuance upon the
receipt of a Certificate specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares of a
Portfolio are redeemed, the Fund shall cause the Transfer Agent
to promptly furnish to the Custodian Written Instructions,
specifying:
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1. The name of the Portfolio whose Shares were redeemed;
2. The number of Shares redeemed; and
3. The amount to be paid for the Shares redeemed.
Any such Written Instructions shall be confirmed by a
Certificate which the Custodian understands and agrees may be
furnished subsequent to the redemption of Shares of a Portfolio.
The Custodian further understands that the information contained
in such Certificate will be derived from the redemption of Shares
as reported to the Fund by the Transfer Agent.
(e) Upon receipt from the Transfer Agent of advice setting forth
the number of Shares of a Portfolio received by the Transfer
Agent for redemption and that such Shares are valid and in good
form for redemption, the Custodian shall make payment to the
Transfer Agent out of the moneys specifically allocated to and
held for the account of the Portfolio specified in subparagraph
(1) of paragraph (d) of this Section 8 of the total amount
specified in the Certificate issued pursuant to paragraph (d) of
this Section 8.
(f) Notwithstanding the above provisions regarding the redemption
of Shares, whenever such Shares are redeemed pursuant to any check
redemption privilege which may from time to time be offered by the
Fund, the Custodian, unless otherwise instructed by a Certificate
shall, upon receipt of advice from the Fund or its agent stating
that the redemption is in good form for redemption in accordance
with the check redemption procedure, honor the check presented as
part of such check redemption privilege out of the moneys
specifically allocated to the Fund in such advice for such
purpose.
9. Indebtedness.
(a) The Fund will cause to be delivered to the Custodian by any
bank (excluding the Custodian) from which the Fund borrows money
for temporary administrative or emergency purposes using
Securities as collateral for such borrowings, a notice or
undertaking in the form
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currently employed by any such bank setting forth the amount
which such bank will loan to the Fund against delivery of a
stated amount of collateral. The Fund shall promptly deliver to
the Custodian Written or Oral Instructions stating with respect
to each such borrowing: (1) the name of the Portfolio for
which the borrowing is to be made; (2) the name of the bank;
(3) the amount and terms of the borrowing, which may be set
forth by incorporating by reference an attached promissory note,
duly endorsed by the Fund, or other loan agreement; (4) the
time and date, if known, on which the loan is to be entered
into (the "borrowing date"); (5) the date on which the loan
becomes due and payable; (6) the total amount payable to the
Fund for the separate account of the Portfolio on the borrowing
date; (7) the market value of Securities to be delivered as
collateral for such loan, including the name of the issuer, the
title and the number of shares or the principal amount of any
particular Securities; (8) whether the Custodian is to deliver
such collateral through the Book-Entry System or the Depository;
and (9) a statement that such loan is in conformance with the
1940 Act and the Fund's Prospectus.
(b) Upon receipt of the Certificate referred to in subparagraph
(a) above, the Custodian shall deliver on the borrowing date the
specified collateral and the executed promissory note, if any,
against delivery by the lending bank of the total amount of the
loan payable, provided that the same conforms to the total amount
payable as set forth in the Written or Oral Instructions. The
Custodian may, at the option of the lending bank, keep such
collateral in its possession, but such collateral shall be
subject to all rights therein given the lending bank by virtue of
any promissory note or loan agreement. The Custodian shall
deliver as additional collateral in the manner directed by the
Fund from time to time such Securities specifically allocated to
such Portfolio as may be specified in Written or Oral
Instructions to collateralize further any transaction described
in this Section 9. The Fund shall cause all Securities released
from collateral status to be returned directly to the Custodian,
and the Custodian shall receive from time to time such return of
collateral as may be tendered to it. In the event that the Fund
fails to specify in Written or Oral Instructions all of the
information required by this Section 9, the Custodian shall not
be under any obligation to deliver any Securities. Collateral
returned to the Custodian shall be held hereunder as it was prior
to being used as collateral.
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10. Persons Having Access to Assets of the Portfolios.
(a) No Director, officer, employee or agent of the Fund, and no
officer, director, employee or agent of the Adviser, shall have
physical access to the assets of the Fund held by the Custodian
or be authorized or permitted to withdraw any investments of the
Fund, nor shall the Custodian deliver any assets of the Fund to
any such person. No officer, director, employee or agent of the
Custodian who holds any similar position with the Fund or the
Adviser shall have access to the assets of the Fund.
(b) The individual employees of the Custodian duly authorized by
the Board of Directors of the Custodian to have access to the
assets of the Fund are listed in the certification annexed hereto
as Appendix C. The Custodian shall advise the Fund of any change
in the individuals authorized to have access to the assets of the
Fund by written notice to the Fund accompanied by a certified
copy of the authorizing resolution of the Custodian's Board of
Directors approving such change.
(c) Nothing in this Section 10 shall prohibit any officer,
employee or agent of the Fund, or any officer, director, employee
or agent of the Adviser, from giving Oral Instructions or Written
Instructions to the Custodian or executing a Certificate so long
as it does not result in delivery of or access to assets of the
Fund prohibited by paragraph (a) of this Section 10.
11. Concerning the Custodian.
(a) Standard of Conduct. Except as otherwise provided herein,
neither the Custodian nor its nominee shall be liable for any
loss or damage, including counsel fees, resulting from its action
or omission to act or otherwise, except for any such loss or
damage arising out of its own negligence or willful misconduct.
The Custodian may, with respect to questions of law, apply for
and obtain the advice and opinion of counsel to the Fund or of
its own counsel, at the expense of the Fund, and shall be fully
protected with respect to anything done or omitted by it in good
faith in conformity with such advice or opinion. The Custodian
shall be liable to the Fund for any loss or damage resulting from
the use of the Book-Entry System or the Depository
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arising by reason of any negligence, misfeasance or misconduct on
the part of the Custodian or any of its employees or agents.
(b) Limit of Duties. Without limiting the generality of the
foregoing, the Custodian shall be under no duty or obligation to
inquire into, and shall not be liable for:
1. The validity of the issue of any Securities purchased
by any Portfolio, the legality of the purchase thereof, or
the propriety of the amount paid therefor;
2. The legality of the sale of any Securities by any
Portfolio, or the propriety of the amount for which the
same are sold;
3. The legality of the issue or sale of any Shares, or the
sufficiency of the amount to be received therefor;
4. The legality of the redemption of any Shares, or the
propriety of the amount to be paid therefor;
5. The legality of the declaration or payment of any
dividend or other distribution of any Portfolio;
6. The legality of any borrowing for temporary or emergency
administrative purposes.
(c) No Liability Until Receipt. The Custodian shall not be liable
for, or considered to be the Custodian of, any money, whether or
not represented by any check, draft, or other instrument for the
payment of money, received by it on behalf of any Portfolio until
the Custodian actually receives and collects such money directly
or by the final crediting of the account representing the Fund's
interest in the Book-Entry System or the Depository.
(d) Amounts Due from Transfer Agent. The Custodian shall not be
under any duty or obligation to take action to effect collection
of any amount due to any Portfolio from the Transfer Agent nor to
take any action to effect payment or distribution by the Transfer
Agent of
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any amount paid by the Custodian to the Transfer Agent in
accordance with this Agreement.
(e) Collection Where Payment Refused. The Custodian shall not be
under any duty or obligation to take action to effect collection
of any amount, if the Securities upon which such amount is
payable are in default, or if payment is refused after due demand
or presentation, unless and until (a) it shall be directed to
take such action by a Certificate and (b) it shall be assured to
its satisfaction of reimbursement of its costs and expenses in
connection with any such action.
(f) Appointment of Agents and Sub-Custodians. The Custodian may
appoint one or more banking institutions, including but not
limited to banking institutions located in foreign countries, to
act as Depository or Depositories or as Sub-Custodian or as
Sub-Custodians of Securities and moneys at any time owned by any
Portfolio, upon terms and conditions specified in a Certificate.
The Custodian shall use reasonable care in selecting a Depository
and/or Sub-Custodian located in a country other than the United
States ("Foreign Sub-Custodian"), and shall oversee the
maintenance of any Securities or moneys of the Fund by any
Foreign Sub-Custodian. In addition, the Custodian shall hold the
Fund harmless from, and indemnify the Fund against, any loss that
occurs as a result of the failure of any Foreign Sub-Custodian to
exercise reasonable care with respect to the safekeeping of
Securities and moneys of the Fund.
(g) No Duty to Ascertain Authority. The Custodian shall not be
under any duty or obligation to ascertain whether any Securities
at any time delivered to or held by it for the Fund and
specifically allocated to a Portfolio are such as may properly be
held by the Fund and specifically allocated to such Portfolio
under the provisions of the Articles of Incorporation and the
Prospectus.
(h) Compensation of the Custodians. The Custodian shall be
entitled to receive, and the Fund agrees to pay to the Custodian,
such compensation as may be agreed upon from time to time between
the Custodian and the Fund. The Custodian may charge against any
moneys specifically allocated to a Portfolio such compensation
and any expenses incurred by the Custodian in the performance of
its
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duties pursuant to such agreement with respect to such Portfolio.
The Custodian shall also be entitled to charge against any money
held by it and specifically allocated to a Portfolio the amount
of any loss, damage, liability or expense incurred with respect
to such Portfolio, including counsel fees, for which it shall be
entitled to reimbursement under the provisions of this Agreement.
The expenses which the Custodian may charge against such
account include, but are not limited to, the expenses of
Sub-Custodians and foreign branches of the Custodian incurred in
settling transactions outside of Boston, Massachusetts or New
York City, New York involving the purchase and sale of Securities
of any Portfolio.
(i) Reliance on Certificates and Instructions. The Custodian
shall be entitled to rely upon any Certificate, notice or other
instrument in writing received by the Custodian and reasonably
believed by the Custodian to be genuine and to be signed by two
officers of the Fund. The Custodian shall be entitled to rely
upon any Written Instructions or Oral Instructions actually
received by the Custodian pursuant to the applicable Sections of
this Agreement and reasonably believed by the Custodian to be
genuine and to be given by an Authorized Person. The Fund agrees
to forward to the Custodian Written Instructions from an
Authorized Person confirming such Oral Instructions in such
manner so that such Written Instructions are received by the
Custodian, whether by hand delivery, telex or otherwise, by the
close of business on the same day that such Oral Instructions are
given to the Custodian. The Fund agrees that the fact that such
confirming instructions are not received by the Custodian shall
in no way affect the validity of the transactions or
enforceability of the transactions hereby authorized by the Fund.
The Fund agrees that the Custodian shall incur no liability to
the Fund in acting upon Oral Instructions given to the Custodian
hereunder concerning such transactions provided such instructions
reasonably appear to have been received from a duly Authorized
Person.
(j) Inspection of Books and Records. The books and records of the
Custodian shall be open to inspection and audit at reasonable
times by officers and auditors employed by the Fund and by
employees of the Securities and Exchange Commission.
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The Custodian shall provide the Fund with any report
obtained by the Custodian on the system of internal accounting
control of the Book-Entry System or the Depository and with such
reports on its own systems of internal accounting control as the
Fund may reason ably request from time to time.
12. Term and Termination.
(a) This Agreement shall become effective on the date first set
forth above (the "Effective Date") and shall continue in effect
thereafter as the parties may mutually agree.
(b) Either of the parties hereto may terminate this Agreement with
respect to any Portfolio by giving to the other party a notice in
writing specifying the date of such termination, which shall be
not less than 60 days after the date of receipt of such notice. In
the event such notice is given by the Fund, it shall be
accompanied by a certified resolution of the Board of Directors of
the Fund, electing to terminate this Agreement with respect to any
Portfolio and designating a successor custodian or custodians,
which shall be a person qualified to so act under the 1940 Act. In
the event such notice is given by the Custodian, the Fund shall,
on or before the termination date, deliver to the Custodian a
certified resolution of the Board of Directors of the Fund,
designating a successor custodian or custodians. In the absence of
such designation by the Fund, the Custodian may designate a
successor custodian, which shall be a person qualified to so act
under the 0000 Xxx. If the Fund fails to designate a successor
custodian for any Portfolio, the Fund shall upon the date
specified in the notice of termination of this Agreement and upon
the delivery by the Custodian of all Securities (other than
Securities held in the Book-Entry Systems which cannot be
delivered to the Fund) and moneys then owned by such Portfolio, be
deemed to be its own custodian and the Custodian shall thereby be
relieved of all duties and responsibilities pursuant to this
Agreement, other than the duty with respect to Securities held in
the Book-Entry System which cannot be delivered to the Fund.
(c) Upon the date set forth in such notice under paragraph (b) of
this Section 12, this Agreement shall terminate to the extent
specified in such notice, and the Custodian shall upon receipt of
a notice of acceptance by the successor custodian on that date
deliver directly to
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the successor custodian all Securities and moneys then held by
the Custodian and specifically allocated to the Portfolio or
Portfolios specified, after deducting all fees, expenses and
other amounts for the payment or reimbursement of which it shall
then be entitled with respect to such Portfolio or Portfolios.
13. Miscellaneous.
(a) Annexed hereto as Appendix A is a certification signed by two
of the present officers of the Fund setting forth the names and
the signatures of the present Authorized Persons. The Fund agrees
to furnish to the Custodian a new certification in similar form
in the event that any such present Authorized Person ceases to be
such an Authorized Person or in the event that other or
additional Authorized Persons are elected or appointed. Until
such new certification shall be received, the Custodian shall be
fully protected in acting under the provisions of this Agreement
upon Oral Instructions or signatures of the present Authorized
Persons as set forth in the last delivered certification.
(b) Annexed hereto as Appendix B is a certification signed by two
of the present officers of the Fund setting forth the names and
the signatures of the present officers of the Fund. The Fund
agrees to furnish to the Custodian a new certification in similar
form in the event any such present officer ceases to be an
officer of the Fund or in the event that other or additional
officers are elected or appointed. Until such new certification
shall be received, the Custodian shall be fully protected in
acting under the provisions of this Agreement upon the signature
of the officers as set forth in the last delivered certification.
(c) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Custodian, shall be
sufficiently given if addressed to the Custodian and mailed or
delivered to it at its offices at Xxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 or at such other place as the Custodian may
from time to time designate in writing.
(d) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Fund, shall be
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sufficiently given if addressed to the Fund and mailed or
delivered to it at its offices at Xxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, or at such other place as the Fund may from
time to time designate in writing.
(e) This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties with the
same formality as this Agreement, (i) authorized and approved by
a resolution of the Board of Directors of the Fund, including a
majority of the members of the Board of Directors of the Fund
who are not "interested persons" of the Fund (as defined in the
1940 Act), or (ii) authorized and approved by such other
procedures as may be permitted or required by the 1940 Act.
(f) This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by
the Fund without the written consent of the Custodian, or by the
Custodian without the written consent of the Fund authorized or
approved by a resolution of the Board of Directors of the Fund,
and any attempted assignment without such written consent shall
be null and void.
(g) This Agreement shall be construed in accordance with the laws
of the Commonwealth of Massachusetts.
(h) The captions of the Agreement are included for convenience of
reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or
effect.
(i) This Agreement may be executed in any number of counter
parts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunder duly authorized as of the day and year
first above written.
THE GABELLI EQUITY TRUST INC.
By: /s/ Xxxxxxxx X.X. Xx Xxxxxxx
----------------------------
Attest:
----------------------------
BOSTON SAFE DEPOSIT AND
TRUST COMPANY
By: /s/ Xxxx X. Xxxxxx
----------------------------
Attest:
/s/ Xxxxxx X. Xxxxxxx
-----------------------------
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APPENDIX A
We, Xxxxx X. Xxxxxxx, President, and Xxxxxxxx X.X. Xx Xxxxxxx, Secretary,
of The Gabelli Equity Trust Inc., a Maryland corporation (the "Fund"), do hereby
certify that:
The following individuals have been duly authorized as Authorized Persons
to give Oral Instructions and Written Instructions on behalf of the Fund and the
signatures set forth opposite their respective names are their true and correct
signatures:
Name Signature
Xxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxxxxxx /s/ Xxxxx Xxxxxxxxxxxx
-----------------------------------
/s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxxx, President
/s/ Xxxxxxxx X.X. Xx Xxxxxxx
------------------------------------
Xxxxxxxx X.X. Xx Xxxxxxx, Secretary
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AFFIDAVIT OF SIGNATURES
I, Xxxxx Xxxxxx, Executive Vice President and General Counsel of The
Boston Company Advisors, Inc. do hereby certify that the signatures set forth
opposite the respective names of Xxxxxx X. Xxxxxxxx and Xxxxx Xxxxxxxxxxxx are
their true and correct signatures.
Name Signature
Xxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxx Xxxxxxxxxxxx /s/ Xxxxx Xxxxxxxxxxxx
----------------------------
/s/ Xxxxx Xxxxxx
--------------------- ----------------------------
Witness Xxxxx Xxxxxx
Date: 8/19/86 Date: 8/19/86
---------------- -----------------------
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APPENDIX B - OFFICERS
I, Xxxxx X. Xxxxxxx, President, and I, Xxxxxxxx X.X. Xx Xxxxxxx,
Secretary, of The Gabelli Equity Trust Inc., a Maryland corporation (the
"Fund"), do hereby certify that:
The following individuals serve in the following positions with the Fund
and each individual has been duly elected or appointed to each such position and
qualified therefor in conformity with the Fund's Articles of Incorporation and
the signatures set forth opposite their respective names are their true and
correct signatures:
Name Position Signature
---- -------- ---------
Xxxxx X. Xxxxxxx President /s/ Xxxxx X. Xxxxxxx
----------------------------
Xxxxxxxx X.X. Xx Xxxxxxx Executive Vice
President and
Secretary /s/ Xxxxxxxx X.X. Xx Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxxx, Xx. Treasurer /s/ Xxxxxx X. Xxxxxxxxx, Xx.
----------------------------
Xxxxxxx Xxxxxxxx Assistant Secretary /s/ Xxxxxxx Xxxxxxxx
----------------------------
Xxxxx Xxxxxxx Assistant Secretary /s/ Xxxxx Xxxxxxx
----------------------------
/s/ Xxxxx X. Xxxxxxx
----------------------------------------------------
Xxxxx X. Xxxxxxx, President
/s/ Xxxxxxxx X.X. Xx Xxxxxxx
----------------------------------------------------
Xxxxxxxx X.X. Xx Xxxxxxx, Secretary
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APPENDIX C - INDIVIDUALS WITH ACCESS
I, Xxxxxx X. Xxxxxxx, Secretary of Boston Safe Deposit and Trust
Company, a Massachusetts corporation (the "Custodian"), do hereby certify that:
The following seven named individuals have been duly authorized by the
Executive Committee of the Board of Directors of the Custodian to have access to
the assets of the THE GABELLI EQUITY TRUST INC., a Maryland corporation, held by
the Custodian in its capacity as such:
Xxxxx X. XxXxxxx
Xxxxx XxXxxxx
Xxxxxxxx X. Xxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. XxXxxxx, XX
Xxxxxxxx Xxxx
S. Xxxxxxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx
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Schedule A
CUSTODY FEES
Annual Fee Rate as a Percentage
of Month-End Market Value
----------------------------------
General Custody:
Domestic Custody .02% or minimum $5,000 per month,
whichever is greater
International Custody .23% for the first $100
million and .19% in excess of $100
million per month for global
custody; .02% for domestic custody
Custody Transaction Charges
International Transactions $20.00
Domestic:
-- Portfolio Trades Depository Eligible $12.00
Non-Depository Eligible $25.00
-- Option charge for each option
written or closing contract,
per issue, per broker $25.00
-- Option expiration charge,
per issue, per broker $10.00
-- Option exercised charge, per
issue, per broker $10.00
Securities Lending Charges
--------------------------
-- Deliver securities against
collateral $25.00
-- Deliver collateral against
receipt of securities $20.00
-- Marking-to-market $ 5.00/day
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Schedule B
The Fund will pay to the Custodian as soon as possible after the end of
each month all out-of-pocket expenses reasonably incurred in connection with the
assets of the Fund.
These out-of-pocket expenses would include, but are not necessarily
limited to, the following:
- Federal wire fees
- Registered mail costs
- Armored car fees
- Certificate fees
- Costs of Exception Processing of corporate action items
- All other miscellaneous expenses reasonably incurred by the
Custodian
29
