CUSTODY AGREEMENT
AGREEMENT dated as of September 19, 1989 between THE GABELLI VALUE
FUND, INC. (the "Fund"), a Maryland corporation, having its principal office and
place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, and BOSTON SAFE
DEPOSIT AND TRUST COMPANY (the "Custodian"), a Massachusetts trust company with
its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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.
(d) "Articles of Incorporation" shall mean the Articles of
Incorporation of the Fund dated July 20, 1989 as the same may be amended from
time to time.
(e) "Depository" shall mean The Depository Fund Company ("DTC"), a
clearing agency registered with the Securities and Exchange Commission under
Section 17(a) of the Securities Exchange Act of 1934, 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) "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.
(i) "Shares" refers to the shares of common stock, $.001 par value per
share of the Fund.
(j) "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 the Fund.
(k) "Transfer Agent" shall mean the person that performs the transfer
agent, dividend disbursing agent and shareholder servicing agent functions for
the Fund.
(1) "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.
(m) 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 during the period of this Agreement.
(b) The Custodian hereby accepts appointment as such custodian for the
Fund 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. Such Fee Schedule does not
include out-of-pocket disbursements of the Custodian for which the Custodian
shall be entitled to ▇▇▇▇ separately. Out-of-pocket disbursements shall include,
but shall not be limited to, the items specified in the Schedule 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) 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.
(c) The Custodian will ▇▇▇▇ the Fund as soon as practicable after the
end of each calendar month, and said ▇▇▇▇▇▇▇▇ will be detailed in accordance
with the Fee Schedule for the Fund. 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. 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 the Fund are to be deposited
on behalf of the Fund in the Book-Entry System or the Depository and
specifically allocated on the books of the Custodian to the Fund; provided,
however, that prior to the deposit of Securities of the Fund in the Book-Entry
System or the Depository, including a deposit in connection with the settlement
of a purchase or sale, the Fund 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 that 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 an account for the Fund and shall credit to the account of the Fund all
moneys received by it for the account of the Fund and shall disburse the same
only:
1. In payment for Securities purchased for the Fund, as provided in Section
5 hereof;
2. In payment of dividends or distributions with respect to the Shares of
the Fund, as provided in Section 7 hereof;
3. In payment of original issue or other taxes with respect to the Shares
of the Fund, as provided in Section 8 hereof;
4. In payment for Shares which have been redeemed by the Fund, 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 the Fund, 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 the Fund, 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 the Fund during said day.
Where securities purchased by the Fund 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 the Fund. At least monthly, the Custodian shall furnish
the Fund with a detailed statement of the Securities and moneys held for the
Fund under this Agreement.
(d) Registration of Securities and Physical Separation. All Securities
held for the Fund that 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 the Fund may be registered in the
name of the Fund, 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 the Fund.
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 that it may hold for the account of the Fund and
that may from time to time be registered in the name of the Fund. The Custodian
shall hold all such Securities specifically allocated to the Fund that are not
held in the Book-Entry System or the Depository in a separate account for the
Fund in the name of the Fund 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 the Fund 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 the Depository with respect to
Securities therein deposited, shall with respect to all Securities held for the
Fund in accordance with this Agreement:
1. Collect all income due or payable;
2. Present for payment and collect the amount payable upon all
Securities that may mature or be called, redeemed or
retired, or otherwise become payable. Notwithstanding the
foregoing, the Custodian shall have no responsibility to the
Fund for monitoring or ascertaining any call, redemption or
retirement dates with respect to put bonds that are owned by
the Fund and held by the Custodian or its nominee. Nor shall
the Custodian have any responsibility or liability to the
Fund for any loss to the Fund, for any missed payments or
other defaults resulting therefrom; unless the Custodian
receives timely notification from the Fund specifying the
time, place and manner for the presentment of any such put
bond owned by the Fund and held by the Custodian or its
nominee. The Custodian shall not be responsible and assumes
no liability to the Fund for the accuracy or completeness of
any notification the Custodian may furnish to the Fund with
respect to put bonds;
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 the Fund all rights and similar Securities
issued with respect to any Securities held by the Custodian
hereunder for the Fund.
(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
the Fund in exchange for other Securities or cash issued or paid
in connection with the liquidation, reorganization, 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
the Fund to any protective committee, reorganization committee or
other person in connection with the reorganization, refinancing,
merger, consolidation or recapitalization or sale of assets o.
any corporation, and receive and hold under the terms of this
Agreement in the Fund's account 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
Fund assets 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 the Fund upon sale of such
Securities for the account of the Fund pursuant to Section
5;
6. Deliver Securities owned by the Fund upon the receipt of
payment in connection with any repurchase agreement related
to such Securities entered into by the Fund;
7. Deliver Securities owned by the Fund 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. Notwithstanding the foregoing, the Custodian shall
have no responsibility to the Fund for monitoring or ascertaining
any call, redemption or retirement dates with respect to put
bonds that are owned by the Fund and held by the Custodian or its
nominee. Nor shall the Custodian have any responsibility or
liability to the Fund for any loss to the Fund, for any missed
payments or other defaults resulting therefrom; unless the
Custodian receives timely notification from the Fund specifying
the time, place and manner for the presentment of any such put
bond owned by the Fund and held by the Custodian or its nominee.
The Custodian shall not be responsible and assumes no liability
to the Fund for the accuracy or completeness of any notification
the Custodian may furnish to the Fund with respect to put bonds;
8. Deliver Securities owned by the Fund for delivery in
connection with any loans of securities made by the Fund but only
against receipt of adequate collateral as agreed upon from time
to time by the Custodian and the Fund that may be in the form of
cash or obligations issued by the United States Government, its
agencies or instrumentalities;
9. Deliver Securities owned by the Fund for delivery as
security in connection with any borrowings by the Fund
requiring a pledge of the Fund assets, but only against
receipt of amounts borrowed;
10. Deliver Securities owned by the Fund upon receipt of
Written Instructions from the Fund 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; and
11. Deliver Securities owned by the Fund as collateral in
connection with short sales of common stock for which the Fund
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 the Fund for any purpose
expressly permitted by and in accordance with procedures
described in the Fund's Prospectus; and
13. Deliver Securities owned by the Fund 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 the Fund.
5. Purchase and Sale of Investments of the Fund.
(a) Promptly after each purchase of Securities for the Fund, the Fund
shall deliver to the Custodian (i) with respect to each purchase of Securities
that 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 Fund; (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 through 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 the Fund and upon receipt of such Securities
shall pay out of the moneys held for the account of the Fund 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 the Fund, the Fund shall
deliver to the Custodian (i) with respect to each sale of Securities that 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 Fund; (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 o sale; (5)
the sale price per unit; (6) the total amount payable to the Fund 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 the Fund upon such sale, provided that the same
conforms to the total amount payable to the Fund 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 is permitted by the terms of its Articles of Incorporation
and as disclosed in its Prospectus to lend Securities, 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 name of the
Fund; (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 allocated to the Fund
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, the Fund shall
deliver to the Custodian Written Instructions specifying with respect to each
such loan termination and return of Securities: (a) the name of the Fund; (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 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 by the Fund 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 the Fund, 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 held for the account of the Fund the total amount payable to
the Transfer Agent of the Fund.
8. Sale and Redemption of Shares of the Fund.
(a) Whenever the Fund shall sell any of its Shares, the Fund shall
deliver or cause to be delivered to the Custodian a Certificate duly specifying:
1. The name of the Fund;
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.
The Custodian understands and agrees that the Certificate may be
furnished subsequent to the purchase of Shares of the Fund and that the
information contained therein will be derived from the sales of Shares of the
Fund's account 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 Fund's account.
(c) Upon issuance of any Shares of the Fund 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 the Fund, 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 the Fund are
redeemed, the Fund shall cause the Transfer Agent to promptly furnish to the
Custodian Written Instructions, specifying:
1. The name of the Fund.
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 the Fund. 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 the Fund 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 held for the account of the
Fund 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 that 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 currently employed by any such
bank setting forth the amount that 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 Fund; (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 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 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.
10. Persons Having Access to Assets of the Fund.
(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 ~f 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 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 or 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 the
Fund, the legality of the purchase thereof, or the propriety
of the amount paid therefor;
2. The legality of the sale of any Securities by the Fund, 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 the Fund.
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 the Fund 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
the Fund from the Transfer Agent nor to take any action to effect payment or
distribution by the Transfer Agent of 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 to act as Depository or Depositories or as
Sub-Custodian or as Sub-Custodians of Securities and moneys at any time owned by
the Fund, upon terms and conditions specified in a Certificate.
(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 are such as may properly be held by the Fund 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 of the Fund such compensation and any
expenses incurred by the Custodian in the performance of its duties pursuant to
this Agreement. The Custodian shall also be entitled to charge against any money
held by it for the Fund the amount of any loss, damage, liability or expense
incurred with respect to the Fund, including counsel fees, for which it shall be
entitled to reimbursement under the provisions of this Agreement.
The expenses that the Custodian may charge against such account
include, but are not limited to, the expenses of Sub-Custodians incurred in
settling transactions outside of Boston, Massachusetts or New York City, New
York involving the purchase and sale of Securities of the Fund.
(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 the appropriate employees of the
Securities and Exchange Commission.
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 reasonably 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 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 and designating a successcr 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 ▇▇▇▇
▇▇▇. If the Fund fails to designate a successor custodian, 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 the Fund, 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 that
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 the successor custodian all
Securities and moneys then held by the Custodian, after deducting all fees,
expenses and other amounts for the payment or reimbursement of which it shall
then be entitled.
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 ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 sufficiently given if
addressed to the Fund and mailed or delivered to it at its offices at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 counterparts, each
of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
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 VALUE FUND INC.
By: ▇▇▇▇▇ ▇▇▇▇▇▇
VICE PRESIDENT
Attest:
ILLEGIBLE
BOSTON SAFE DEPOSIT AND
TRUST COMPANY
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Attest:
▇▇▇▇▇▇ ▇. BIEBER
APPENDIX A
We, ▇▇▇▇▇ ▇▇▇▇▇▇, Vice President and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary, of
the Gabelli Value Fund 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
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
▇▇▇▇▇▇ ▇. Rock ▇▇▇▇▇▇ ▇. ROCK
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary
APPENDIX B - OFFICERS
I, ▇▇▇▇▇ ▇▇▇▇▇▇, Vice President and I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary,
of The Gabelli Value Fund 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
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ President and
Chief Invest-
ment Officer ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Chief Operating
Officer, Vice
President and
Treasurer ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Secretary ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Vice President-
Research ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Vice President-
Research ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary
AFFADAVIT OF SIGNATURES
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III, Esq., Senior Vice President and General
Counsel of The Boston Company Advisors, Inc. do hereby certify that the
signatures set forth opposite the respective names of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇'▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. Rock are their true and correct signatures.
Name Signature
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
▇▇▇▇▇▇ ▇. Rock ▇▇▇▇▇▇ ▇. ROCK
ILLEGIBLE ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III, ESQ.
Witness ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III, Esq.
Date: September 5, 1990 Date: September 5, 1990
------------------------------ ------------------------
APPENDIX C - INDIVIDUALS WITH ACCESS
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary of Boston Safe Deposit and Trust Company,
a Massachusetts trust company (the "Custodian"), do hereby certify that:
The following nine named individuals have been duly authorized by the
Board of Directors of the Custodian to have access to the assets of The Gabelli
Value Fund Inc., a Maryland Corporation, held by the Custodian in its capacity
as such
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
S. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
THE GABELLI VALUE FUND INC.
Schedule A
CUSTODY FEES
Annual Fee Rate as a Percentage
General Custody: of Month-End Market Value
---------------- ----------------------------
Custodial Services First $100 million .03 %
Next $200 million .025 %
Next $200 million .0175%
Excess .01 %
Custody Transaction Charges
Domestic:
- Portfolio Trades Depository Eligible $12.00
Non-Depository Eligible $30.00
- 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
SCHEDULE A (cont)
Global Safekeeping Fees:
Depository held assets 0.12%
Non-depository held assets 0.15
Transaction Charges
Buys, Sells, Maturities S35
FX trades with Boston Advisors $ 0
FX trades with third parties $20
Out-of-Pocket Expenses
All related expenses
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.
August 16, 1990
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Gabelli Funds, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇:
We have been evaluating our Global Custody fee schedule recently. In light of
the very limited nature of The Gabelli Value Fund's intended international
activities, we are pleased to be able to provide you the following modified fee
schedule.
Safekeeping Fees
Depository held assets 12 b.p.
Non-depository held assets 15 b.p.
Transaction Charges
Buys, Sells, Maturities $35
FX trades with TBC $ 0
FX trades with third Parties $20
Out-of-Pocket Expenses
All related expenses
This schedule will be used immediately in lieu of the schedule approved by your
Fund's Board of Directors. If you have any questions, please do not hesitate to
call me at (▇▇▇) ▇▇▇-▇▇▇▇.
Sincerely,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President