Exhibit 99(d)(6)
SUBSCRIPTION AGENT AGREEMENT
This Subscription Agent Agreement (the "Agreement") is made as of
October __, 2004 between The Gabelli Utility Trust (the " Company"), EquiServe,
Inc., a Delaware corporation and its fully owned subsidiary EquiServe Trust
Company, N.A., a national banking (collectively, the "Agent" or individually
"EQI" and the "Trust Company", respectively. All terms not defined herein shall
have the meaning given in the prospectus (the "Prospectus") included in the
(Registration Statement on Form N-2, File Nos. 333-118701 and 811-09243 filed
by the Company with the Securities and Exchange Commission on August 31, 2004,
as amended by any amendment filed with respect thereto (the "Registration
Statement").
WHEREAS, the Company proposes to make subscription offer by issuing
certificates or other evidences of subscription rights, in the form designated
by the Company (the "Subscription Certificates") to shareholders of record (the
"Shareholders") of its Common Shares of beneficial interest, par value $0.001
per share ("Common Shares"), as of a record date specified by the Company (the
"Record Date"), pursuant to which each Shareholder will have certain rights
(the "Rights") to subscribe for shares of Common Shares, as described in and
upon such terms as are set forth in the Prospectus, a final copy of which has
been or, upon availability will promptly be, delivered to the Agent; and
WHEREAS, the Company wishes the Agent to perform certain acts on
behalf of the Company, and the Agent is willing to so act, in connection with
the distribution of the Subscription Certificates and the issuance and exercise
of the Rights to subscribe therein set forth, all upon the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements set forth herein, the parties agree as follows:
1. Appointment.
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The Company hereby appoints the Agent to act as subscription agent in
connection with the distribution of Subscription Certificates and the issuance
and exercise of the Rights in accordance with the terms set forth in this
Agreement and the Agent hereby accepts such appointment.
2. Form and Execution of Subscription Certificates.
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A. Each Subscription Certificate shall be irrevocable. The Agent
shall, in its capacity as Transfer Agent of the Company, maintain a register of
Subscription Certificates and the holders of record thereof (each of whom shall
be deemed a "Shareholder" hereunder for purposes of determining the rights of
holders of Subscription Certificates). Each Subscription Certificate shall,
subject to the provisions thereof, entitle the Shareholder in whose name it is
recorded to the following:
(1) With respect to Record Date Shareholders only, the right
to acquire during the Subscription Period, as defined in the Prospectus, at the
Subscription Price, as defined in the Prospectus, a number of Common Shares
equal to one Common Share for every four Rights (the "Primary Subscription
Right"); and
(2) With respect to Record Date Shareholders only, the right
to subscribe for additional Common Shares, subject to the availability of such
shares and to the allotment of such shares as may be available among Record
Date Shareholders who exercise Over-Subscription Rights on the basis specified
in the Prospectus; provided, however, that such Record Date Shareholder has
exercised all Primary Subscription Rights issued to him or her (the
"Over-Subscription Privilege").
3. Rights and Issuance of Subscription Certificates.
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A. Each Subscription Certificate shall evidence the Rights of the
Shareholder therein named to purchase Common Shares upon the terms and
conditions therein and herein set forth.
B. Upon the written advice of the Company, signed by any of its duly
authorized officers, as to the Record Date, the Agent shall, from a list of the
Company Shareholders as of the Record Date to be prepared by the Agent in its
capacity as Transfer Agent of the Company, prepare and record Subscription
Certificates in the names of the Shareholders, setting forth the number of
Rights to subscribe for the Company's Common Shares calculated on the basis of
one Right for each Common Share recorded on the books in the name of each such
Shareholder as of the Record Date. The number of Rights that are issued to
Record Date Shareholders will be rounded up, by the Agent, to the nearest
number of Full Rights as Fractional Rights will not be issued. Each
Subscription Certificate shall be dated as of the Record Date and shall be
executed manually or by facsimile signature of a duly authorized officer of the
Subscription Agent. Upon the written advice, signed as aforesaid, as to the
effective date of the Registration Statement, the Agent shall promptly
countersign and deliver the Subscription Certificates, together with a copy of
the Prospectus, instruction letter and any other document as the Company deems
necessary or appropriate, to all Shareholders with record addresses in the
United States (including its territories and possessions and the District of
Columbia), Canada. Delivery shall be by first class mail (without registration
or insurance), except for those Shareholders having a registered address
outside the United States and Canada (who will only receive copies of the
Prospectus, instruction letter and other documents as the Company deems
necessary or appropriate, if any), delivery shall be by air mail (without
registration or insurance) and by first class mail (without registration or
insurance) to those Shareholders having APO or FPO addresses. No Subscription
Certificate shall be valid for any purpose unless so executed.
C. The Agent will mail a copy of the Prospectus, instruction letter, a
special notice and other documents as the Company deems necessary or
appropriate, if any, but not Subscription Certificates to Record Date
Shareholders whose record addresses are outside the United States (including
its territories and possessions and the District of Columbia ) and Canada
("Foreign Record Date Shareholders"). The Rights to which such Subscription
Certificates relate will be held by the Agent for such Foreign Record Date
Shareholders' accounts until instructions are received to exercise, sell or
transfer the Rights.
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4. Exercise.
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A. Record Date Shareholders may acquire Common Shares on Primary
Subscription and pursuant to the Over-Subscription Privilege by delivery to the
Agent as specified in the Prospectus of (i) the Subscription Certificate with
respect thereto, duly executed by such Shareholder in accordance with and as
provided by the terms and conditions of the Subscription Certificate, together
with (ii) the estimated purchase price, as disclosed in the Prospectus, for
each Common Share subscribed for by exercise of such Rights, in U.S. dollars by
money order or check drawn on a bank in the United States, in each case payable
to the order of the Company or EQI.
B. Rights may be exercised at any time after the date of issuance of
the Subscription Certificates with respect thereto but no later than 5:00 P.M.
New York time on such date as the Company shall designate to the Agent in
writing (the "Expiration Date"). For the purpose of determining the time of the
exercise of any Rights, delivery of any material to the Agent shall be deemed
to occur when such materials are received at the Shareholder Services Division
of the Agent specified in the Prospectus.
C. Notwithstanding the provisions of Section 4 (a) and 4 (b) regarding
delivery of an executed Subscription Certificate to the Agent prior to 5:00
P.M. New York time on the Expiration Date, if prior to such time the Agent
receives payment in full and a Notice of Guaranteed Delivery by facsimile
(telecopy) or otherwise from a bank, a trust company or a New York Stock
Exchange member guaranteeing delivery of a properly completed and executed
Subscription Certificate, then such exercise of Primary Subscription Rights and
Over-Subscription Rights shall be regarded as timely, subject, however, to
receipt of the duly executed Subscription Certificate within three Business
Days (as defined below) after the Expiration Date (the "Protect Period"). For
the purposes of the Prospectus and this Agreement, "Business Day" shall mean
any day on which trading is conducted on the New York Stock Exchange.
D. As soon as practicable after the Expiration Date (the " Expiration
Date"), EQI shall send to each exercising shareholder (or, if Common Shares on
the Record Date are held by Cede & Co. or any other depository or nominee, to
Cede & Co. or such other depository or nominee) a confirmation showing the
number of Common Shares acquired pursuant to the Primary Subscription, and, if
applicable, the Over-Subscription Privilege, the per share and total purchase
price for such shares, and any additional amount payable to the Company by such
shareholder or any excess to be refunded by the Company to such shareholder in
the form of a check and stub, along with a letter explaining the allocation of
Common Shares pursuant to the Over-Subscription Privilege.
E. Any excess payment to be refunded by the Company to a shareholder
will be mailed by EQI within ten Business Days after the Confirmation Date. EQI
will not issue or deliver certificates or Statements of Holding for shares
subscribed for until payment in full therefore has been received, including
collection of checks.
5. Validity of Subscriptions.
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Irregular subscriptions not otherwise covered by specific instructions
herein shall be submitted to an appropriate officer of the Company and handled
in accordance with his or her instructions. Such instructions will be
documented by the Agent indicating the instructing officer and the date
thereof.
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6. Over-Subscription.
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If, after allocation of shares of Common Shares to Record Date
Shareholders, there remain unexercised Rights, then the Agent shall allot the
shares issuable upon exercise of such unexercised Rights in accordance with the
allocation set forth in the Registration Statement. The Agent shall advise the
Company immediately upon the completion of the allocation set forth in the
Registration Statement as to the total number of shares subscribed and
distributable.
7. Delivery of Shares.
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The Agent will deliver (i) certificates or Statement of Holding
reflecting new Common Shares of the Direct Registration System, representing
those shares of Common Shares purchased pursuant to exercise of Primary
Subscription Rights as soon as practicable after the corresponding Rights have
been validly exercised and full payment for such shares cleared and (ii)
certificates or Statements of Holding representing those shares purchased
pursuant to the exercise of the Over-Subscription Privilege as soon as
practicable after the Expiration Date and after all allocations have been
effected.
8. Holding Proceeds of Rights Offering.
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A. All proceeds received by EQI from Shareholders in respect of the
exercise of Rights shall be held by EQI, on behalf of the Company, in a
segregated account (the "Account"). No interest shall accrue to the Company or
shareholders on funds held in the Account pending disbursement in the manner
described in Section 4(E) above.
B. EQI shall deliver all proceeds received in respect of the exercise
of Rights to the Company as promptly as practicable, but in no event later than
ten business days after the Confirmation Date.
C. The Company acknowledges that the bank accounts maintained by EQI
in connection with the services provided under this Agreement will be in its
name and that EQI may receive investment earnings in connection with the
investment at EQI's risk and for its benefit of funds held in those accounts
from time to time.
9. Reports.
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Daily, during the period commencing on __________, until termination
of the Subscription Period, the Agent will report by telephone or telecopier,
confirmed by letter, to an Officer of the Company, data regarding Rights
exercised, the total number of Common Shares subscribed for, and payments
received therefor, bringing forward the figures from the previous day's report
in each case so as to show the cumulative totals and any such other information
as may be mutually determined by the Company and the Agent.
10. Loss or Mutilation.
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If any Subscription Certificate is lost, stolen, mutilated or
destroyed, the Agent may, on such terms which will indemnify and protect the
Company and the Agent as the Agent may in its discretion impose (which shall,
in the case of a mutilated Subscription Certificate include the surrender and
cancellation thereof), issue a new Subscription Certificate of like
denomination in substitution for the Subscription Certificate so lost, stolen,
mutilated or destroyed.
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11. Compensation for Services.
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The Company agrees to pay to the Agent compensation for its services
hereunder in accordance with its Fee Schedule to act as Agent attached hereto
as Exhibit A. The Company further agrees that it will reimburse the Agent for
its reasonable out-of-pocket expenses incurred in the performance of its duties
as such.
12. Instructions, Indemnification and Limitation of Liability.
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The Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions:
A. The Agent shall be entitled to rely upon any instructions or
directions furnished to it by an appropriate officer of the Company, whether in
conformity with the provisions of this Agreement or constituting a modification
hereof or a supplement hereto. Without limiting the generality of the foregoing
or any other provision of this Agreement, the Agent, in connection with its
duties hereunder, shall not be under any duty or obligation to inquire into the
validity or invalidity or authority or lack thereof of any instruction or
direction from an officer of the Company which conforms to the applicable
requirements of this Agreement and which the Agent reasonably believes to be
genuine and shall not be liable for any delays, errors or loss of data
occurring by reason of circumstances beyond the Agent's control.
B. The Company will indemnify the Agent and its nominees against, and
hold it harmless from, all liability and expense which may arise out of or in
connection with the services described in this Agreement or the instructions or
directions furnished to the Agent relating to this Agreement by an appropriate
officer of the Company, except for any liability or expense which shall arise
out of the gross negligence, bad faith or willful misconduct of the Agent or
such nominees.
Promptly after the receipt by the Agent of notice of any demand or
claim or the commencement of any action, suit, proceeding or investigation, the
Agent shall, if a claim in respect thereof is to be made against the Company,
notify the Company thereof in writing. The Company shall be entitled to
participate as its own expense in the defense of any such claim or proceeding,
and, if it so elects at any time after receipt of such notice, it may assume
the defense of any suit brought to enforce any such claim or of any other legal
action or proceeding. For the purposes of this Section 12, the term "expense or
loss" means any amount paid or payable to satisfy any claim, demand, action,
suit or proceeding settled with the express written consent of the Agent, and
all reasonable costs and expenses, including, but not limited to, reasonable
counsel fees and disbursements, paid or incurred in investigating or defending
against any such claim, demand, action, suit, proceeding or investigation.
C. The Agent shall be responsible for and shall indemnify and hold the
Company harmless from and against any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability arising out of or attributable
to Agent's refusal or failure to comply with the terms of this Agreement, or
which arise out of Agent's negligence or willful misconduct or which arise out
of the breach of any representation or warranty of Agent hereunder, for which
Agent is not entitled to indemnification under this Agreement; provided,
however, that Agent's aggregate liability during any term of this Agreement
with respect to, arising from, or arising in connection with this Agreement,
or from all services provided or omitted to be provided under
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this Agreement, whether in contract, or in tort, or otherwise, is limited to,
and shall not exceed, the amounts paid hereunder by the Company to Agent as
fees and charges, but not including reimbursable expenses, during the six (6)
calendar months immediately preceding the event for which recovery from the
Agent is being sought.
13. Changes in Subscription Certificate.
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The Agent may, without the consent or concurrence of the Shareholders
in whose names Subscription Certificates are registered, by supplemental
agreement or otherwise, concur with the Company in making any changes or
corrections in a Subscription Certificate that it shall have been advised by
counsel (who may be counsel for the Company) is appropriate to cure any
ambiguity or to correct any defective or inconsistent provision or clerical
omission or mistake or manifest error therein or herein contained, and which
shall not be inconsistent with the provision of the Subscription Certificate
except insofar as any such change may confer additional rights upon the
Shareholders.
14. Assignment/Delegation.
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A. Except as provided in Section 14(B) below, neither this Agreement
nor any rights or obligations hereunder may be assigned or delegated by either
party without the written consent of the other party.
B. The Agent may, without further consent on the part of the Company,
subcontract with other subcontractors for systems, processing, telephone and
mailing services, and post-exchange activities, as may be required from time to
time; provided, however, that the Agent shall be as fully responsible to the
Company for the acts and omissions of any subcontractor as it is for its own
acts and omissions.
C. Except as explicitly stated elsewhere in this Agreement, nothing
under this Agreement shall be construed to give any rights or benefits in this
Agreement to anyone other than the Agent and the Company and the duties and
responsibilities undertaken pursuant to this Agreement shall be for the sole
and exclusive benefit of the Agent and the Company.
15. Governing Law.
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The validity, interpretation and performance of this Agreement shall
be governed by the law of the Commonwealth of Massachusetts and shall inure to
the benefit of and the obligations created hereby shall be binding upon the
successors and permitted assigns of the parties hereto.
16. Third Party Beneficiaries.
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This Agreement does not constitute an agreement for a partnership or
joint venture between the Agent and the Company. Neither party shall make any
commitments with third parties that are binding on the other party without the
other party's prior written consent.
17. Force Majeure.
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In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, terrorist acts,
equipment or transmission failure or damage reasonably beyond its control, or
other cause reasonably beyond its control, such party shall not be liable for
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damages to the other for any damages resulting from such failure to perform or
otherwise from such causes. Performance under this Agreement shall resume when
the affected party or parties are able to perform substantially that party's
duties.
18. Consequential Damages.
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Neither party to this Agreement shall be liable to the other party for
any consequential, indirect, special or incidental damages under any provisions
of this Agreement or for any consequential, indirect, penal, special or
incidential damages arising out of any act or failure to act hereunder even if
that party has been advised of or has foreseen the possibility of such damages.
19. Severability.
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If any provision of this Agreement shall be held invalid, unlawful, or
unenforceable, the valididty, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired.
20. Counterparts.
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This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall be considered
one and the same agreement.
21. Captions.
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The captions and descriptive headings herein are for the convenience
of the parties only. They do not in any way modify, amplify, alter or give full
notice of the provisions hereof.
22. Confidentiality.
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The Agent and the Company agree that all books, records, informtion
and data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement
including the fees for services set forth in the attached schedule shall remain
confidential, and shall not be voluntarily disclosed to any other person,
except as may be required by law.
23. Term and Termination.
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This Agreement shall remain in effect until the earlier of (a) thirty
(30) days after the Expiration Date; (b) it is terminated by either party upon
a material breach of this Agreement which remains uncured for 30 days after
written notice of such breach has been provided; or (c) 30 days' written notice
has been provided by either party to the other. If transfer agent add: Upon
termination of the Agreement, the Agent shall retain all canceled Certificates
and related documentation as required by applicable law.
24. Notices.
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Until further notice in writing by either party hereto to the other
party, all written reports, notices and other communications between the
Exchange Agent and the Company required or permitted hereunder shall be
delivered or mailed by first class mail, postage prepaid, telecopier or
overnight courier guaranteeing next day delivery,addressed as follows:
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If to the Company, to:
If to the Agent, to:
EquiServe Trust Company, N.A.
c/o EquiServe, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Reorganization Department
or
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000
Attn: Reorganization Department
25. Survival.
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The provisions of Paragraphs 12, 15, 17-19, 22, and 24-26 shall
survive any termination, for any reason, of this Agreement.
26. Merger of Agreement.
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This Agreement constitutes the entire agreement between the parties
hereto and supercedes any prior agreement with respet to the subject matter
hereof whether oral or written.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers, hereunto duly authorized, as of the
day and year first above written.
EQUISERVE TRUST COMPANY, NA. COMPANY
By:______________________________ By:_______________________
Date:____________________________ Date:_____________________
Title:___________________________ Title:____________________
EQUISERVE, INC.
By:______________________________
Date:____________________________
Title:___________________________
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