AUCTION AGENCY AGREEMENT
dated as of April __, 2003
Relating to
Auction Market Preferred Shares
Series M28
Series W28
Series T7
Series W7
Series Th7
Series F7
of
EVERGREEN INCOME ADVANTAGE FUND
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
AUCTION AGENCY AGREEMENT
This Auction Agency Agreement (this "Agreement"), dated as of April __,
2003, is between Evergreen Income Advantage Fund (the "Fund") and Deutsche Bank
Trust Company Americas, a New York banking corporation.
The Fund proposes to issue an aggregate of 19,600 preferred shares,
liquidation preference $25,000 per share, designated as Auction Market Preferred
Shares Series M28, Series W28, Series T7, Series W7, Series Th7, and Series F7
(collectively, the "AMPS"), pursuant to the Fund's Statement of Preferences of
Auction Market Preferred Shares (the "Statement") (as defined below).
The Fund desires that Deutsche Bank Trust Company Americas perform
certain duties as agent in connection with each Auction (as defined below) of
AMPS (in such capacity, the "Auction Agent"), and as the transfer agent,
registrar, dividend paying agent and redemption agent with respect to the AMPS
(in such capacity, the "Paying Agent"), upon the terms and conditions of this
Agreement, and the Fund hereby appoints Deutsche Bank Trust Company Americas as
said Auction Agent and Paying Agent in accordance with those terms and
conditions (hereinafter generally referred to as the "Auction Agent," except in
Sections 3 and 4 below).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Fund and the Auction Agent agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Terms Defined by Reference to the Statement.
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Capitalized terms used herein but not defined herein shall have the
respective meanings specified in the Statement.
1.2 Certain Defined Terms.
As used herein and in the Settlement Procedures (as defined below), the
following terms shall have the following meanings, unless the context otherwise
requires:
(a) "Agent Member" of any Person shall mean a member of, or participant in, the
Securities Depository that will act on behalf of a Bidder.
(b) "Statement" shall mean the Statement of Preferences of Auction Market
Preferred Shares of the Fund in effect at the time the Registration Statement
relating to the AMPS is declared effective by the Securities and Exchange
Commission, specifying the voting powers, preferences and other rights and
limitations of the AMPS.
(c) "Auction" shall have the meaning specified in Section 2.1 hereof.
(d) "Auction Procedures" shall mean the procedures as from time to time in
effect for conducting Auctions that are set forth in Part II of the Statement.
(e) "Authorized Officer" shall mean each Vice President, Assistant Vice
President and Associate of the Auction Agent and every other officer or employee
of the Auction Agent designated as an "Authorized Officer" for purposes hereof
in a written communication from the Auction Agent to the Fund.
(f) "Broker-Dealer Agreement" shall mean each agreement between the Auction
Agent and a Broker-Dealer substantially in the form attached hereto as Exhibit
A.
(g) "Closing" shall mean the date the Fund consummates the transactions for the
issuance and sale of the AMPS.
(h) "Fund Officer" shall mean the President, each Vice President (whether or not
designated by a number or word or words added before or after the title "Vice
President"), the Secretary, the Treasurer, each Assistant Secretary and each
Assistant Treasurer of the Fund and every other officer or employee of the Fund
designated as a "Fund Officer" for purposes hereof in a notice from the Fund to
the Auction Agent.
(i) "Holder" shall be a Person identified as a holder of record of one or more
AMPS, listed as such in the Share Register.
(j) "Settlement Procedures" shall mean the Settlement Procedures attached
as Exhibit D to the Broker-Dealer Agreement.
1.3 Rules of Construction.
Unless the context or use indicates another or different meaning or
intent, the following rules shall apply to the construction of this Agreement:
(a) Words importing the singular number shall include the plural number and vice
versa.
(b) The captions and headings herein are solely for convenience of reference and
shall not constitute a part of this Agreement nor shall they affect its meaning,
construction or effect.
(c) The words "hereof," "herein," "hereto" and other words of similar import
refer to this Agreement as a whole.
(d) All references herein to a particular time of day shall be to New York City
time.
II. THE AUCTION.
2.1 Purpose; Incorporation by Reference of Auction Procedures and Settlement
Procedures.
(a) The Statement provides that the Applicable Rate on shares of a series of
AMPS for each Dividend Period after the Initial Dividend Period shall be the
rate per annum determined by the Auction Agent in accordance with the Auction
Procedures. The Board of Trustees of the Fund has adopted a resolution
appointing Deutsche Bank Trust Company Americas as Auction Agent for purposes of
the Auction Procedures. The Auction Agent hereby accepts such appointment and
agrees that, on each Auction Date, it shall follow the procedures set forth in
this Section 2 and the Auction Procedures for the purpose of determining the
Applicable Rate for the AMPS for the next Dividend Period. Each periodic
operation of such procedures is hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures and in the
Settlement Procedures are incorporated herein by reference in their entirety and
shall be deemed to be a part hereof to the same extent as if such provisions
were set forth fully herein.
2.2 Preparation for Each Auction; Maintenance of Registry of Existing Holders.
(a) As of the date hereof, the Fund shall provide the Auction Agent with a list
of the Broker-Dealers previously approved by the Auction Agent and shall cause
to be delivered to the Auction Agent for execution by the Auction Agent a
Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent
shall keep such list current and accurate and shall indicate thereon, or on a
separate list, the identity of each Existing Holder, if any, whose most recent
Order was submitted by a Broker Dealer on such list and resulted in such
Existing Holder continuing to hold or purchase AMPS. Not later than five
Business Days prior to any Auction Date for which any change in such list of
Broker-Dealers is to be effective, the Fund shall notify the Auction Agent in
writing of such change and, if any such change is the addition of a
Broker-Dealer to such list, the Fund shall cause to be delivered to the Auction
Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by
such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer
Agreement with each Broker-Dealer prior to the participation of any such
Broker-Dealer in any Auction.
(b) In the event that the Auction Date for any Auction shall be changed after
the Auction Agent shall have given the notice referred to in paragraph (g) of
Section 1 of the Settlement Procedures, the Auction Agent, by such means as the
Auction Agent reasonably deems practicable, shall give notice of such change to
the Broker-Dealers not later than the earlier of 9:15 a.m. on the new Auction
Date or 9:15 a.m. on the old Auction Date.
(c) The provisions contained in Section 3 of Part I of the Statement concerning
Special Rate Periods and the notification of a Special Rate Period will be
followed by the Fund and, to the extent applicable, the Auction Agent, and the
provisions contained therein are incorporated herein by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions were set forth fully herein.
(d) (i) On each Auction Date, the Auction Agent shall determine the Maximum Rate
and the Reference Rate. Not later than 9:30 a.m. on each Auction Date, the
Auction Agent shall notify the Fund and the Broker-Dealers of the Maximum Rate
and the Reference Rate.
(ii) On each Auction Date, the Auction Agent shall determine the Reference Rate
and the Maximum Rate. If any "AA" Financial Composite Commercial Paper Rate,
Treasury Index Rate or Reference Rate is not quoted on an interest or bond
equivalent, as the case may be, basis, the Auction Agent shall convert the
quoted rate to the interest or bond equivalent thereof as set forth in the
definition of such rate in the Statement if the rate obtained by the Auction
Agent is quoted on a discount basis, or if such rate in quoted on a basis other
than an interest or bond equivalent or discount basis the Auction Agent shall
convert the quoted rate to an interest or bond equivalent rate after
consultation with the Fund as to the method of such conversion.
(iii) If the Reference Rate is the applicable "AA" Financial Composite
Commercial Paper Rate and such rate is to be based on rates supplied by
Commercial Paper Dealers and one or more of the Commercial Paper Dealers shall
not provide a quotation for the determination of the applicable "AA" Financial
Composite Commercial Paper Rate, the Auction Agent immediately shall notify the
Fund so that the Fund can determine whether to select a substitute Commercial
Paper Dealer or substitute Commercial Paper Dealers to provide the quotation or
quotations not being supplied by any Commercial Paper Dealer or Commercial Paper
Dealers. The Fund promptly shall advise the Auction Agent of any such selection.
If the Fund does not select any such substitute Commercial Paper Dealer or
substitute Commercial Paper Dealers, then the rates shall be supplied by the
remaining Commercial Paper Dealer or Commercial Paper Dealers, if any, or, if
there are no such Commercial Paper Dealers, by the Auction Agent.
(iv) If the Reference Rate is the Treasury Index Rate and if any Treasury Index
Rate is to be based on rates supplied by U.S. Government Securities Dealers and
one or more of the U.S. Government Securities Dealers shall not provide a
quotation for the determination of such Treasury Rate, the Auction Agent shall
immediately notify the Fund so that the Fund can determine whether to select a
substitute U.S. Government Securities Dealers or substitute U.S. Government
Securities Dealers to provide the quotation or quotations not being supplied by
any U.S. Government Securities Dealers or U.S. Government Securities Dealers.
The Fund shall promptly advise the Auction Agent of any such selection.
(e) (i) The Auction Agent shall maintain a registry of the Existing Holders of
the AMPS for purposes of each individual Auction. The Auction Agent shall keep
such registry current and accurate and shall indicate thereon, or on a separate
list, the identity of the respective Broker-Dealer of each Existing Holder, if
any, on whose behalf such Broker-Dealer submitted the most recent Order in any
Auction which resulted in such Existing Holder continuing to hold or purchase
AMPS. The Fund shall provide or cause to be provided to the Auction Agent at or
prior to the Date of Original Issue of the AMPS of each series a list of the
initial Existing Holders of the shares of each such series of AMPS, the number
of shares purchased by each such Existing Holder and the respective
Broker-Dealer of each such Existing Holder or the affiliate thereof through
which each such Existing Holder purchased such shares. The Auction Agent may
rely upon, as evidence of the identities of the Existing Holders, such list, the
results of each Auction and notices from any Existing Holder, the Agent Member
of any Existing Holder or the Broker-Dealer of any Existing Holder with respect
to such Existing Holder's transfer of any AMPS to another Person.
(ii) In the event of any partial redemption of AMPS, upon notice by the Fund to
the Auction Agent of such partial redemption, the Auction Agent promptly shall
request the Securities Depository to notify the Auction Agent of the identities
of the Agent Members (and the respective numbers of shares) from the accounts of
which shares have been called for redemption and the person or department at
such Agent Member to contact regarding such redemption. At least two Business
Days prior to the Auction preceding the date of redemption, the Auction Agent
shall request each Agent Member so identified to disclose to the Auction Agent
(upon selection by such Agent Member of the Existing Holders whose shares are to
be redeemed) the number of AMPS of each such Existing Holder, if any, to be
redeemed by the Fund, provided that the Auction Agent has been furnished with
the name and telephone number of a person or department at such Agent Member
from which it is to request such information. In the absence of receiving any
such information with respect to an Existing Holder, from such Existing Holder's
Agent Member or otherwise, the Auction Agent may continue to treat such Existing
Holder as having ownership of the number of AMPS shown in the Auction Agent's
registry of Existing Holders.
(iii) The Auction Agent shall register a transfer of the ownership of AMPS from
an Existing Holder to another Existing Holder, or to another Person if permitted
by the Fund, only if (A) such transfer is made pursuant to an Auction or (B) if
such transfer is made other than pursuant to an Auction, the Auction Agent has
been notified of such transfer in writing, in a notice substantially in the form
of Exhibit C to the Broker-Dealer Agreement, by such Existing Holder or by the
Agent Member of such Existing Holder. The Auction Agent is not required to
accept any notice of transfer delivered for an Auction unless it is received by
the Auction Agent by 12:00 noon of the Auction Date. The Auction Agent shall
rescind a transfer made on the registry of the Existing Holders of any AMPS if
the Auction Agent has been notified in writing, in a notice substantially in the
form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the
Broker-Dealer of any Person that (i) purchased any AMPS and the seller failed to
deliver such shares or (ii) sold any AMPS and the purchaser failed to make
payment to such Person upon delivery to the purchaser of such shares.
(f) The Auction Agent may request that the Broker-Dealers, as set forth in
Section 3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a
list of their respective customers that such Broker-Dealers believe are
Beneficial Owners of AMPS. The Auction Agent shall keep confidential any such
information and shall not disclose any such information so provided to any
Person other than the relevant Broker-Dealer and the Fund, provided that the
Auction Agent reserves the right to disclose any such information if it is
advised by its counsel that its failure to do so would be unlawful.
2.3 Auction Schedule.
Subject to Section 3 of Part I of the Statement, the Auction Agent
shall normally conduct Auctions weekly (usually Tuesday for Series T7, Wednesday
for Series W7, Thursday for Series Th7 and Friday for Series F7 and, in the case
of Series M28 and Series W28, every 28 days after the first Auction) in
accordance with the schedule set forth below. Such schedule may be changed by
the Auction Agent with the consent of the Fund, which consent shall not be
withheld unreasonably. The Auction Agent shall give notice of any such change to
each Broker-Dealer. Such notice shall be received prior to the first Auction
Date on which any such change shall be effective.
Time Event
By 9:30 a.m. Auction Agent shall
advise the Fund and the
Broker-Dealers of the
Reference Rate and the
Maximum Rate as set forth in
Section 2.2(d)(i) hereof.
9:30 a.m. - 1:30 p.m. Auction Agent shall assemble
information communicated to it by
Broker-Dealers as provided in
Section 2(a) of Part II of the
Statement. Submission deadline is
1:30 p.m.
Not earlier than 1:30 p.m. Auction Agent shall make
determinations pursuant to
Section 3(a) of Part II of
the Statement.
By approximately 3:30 p.m. Auction Agent shall advise
the Fund of the results of
the Auction as provided in
Section 3(b) of Part II of
the Statement.
Submitted Bids and
Submitted Sell Orders
will be accepted and rejected
in whole or in part and AMPS
will be allocated as provided
in Section 4 of Part II of
the Statement.
Auction Agent shall give
notice of the Auction results
as set forth in Section 2.4
hereof.
2.4 Notice of Auction Results.
On each Auction Date, the Auction Agent will advise each Broker-Dealer
who submitted a Bid or Sell Order in an Auction whether such Bid or Sell Order
was accepted or rejected in whole or in part and of the Applicable Rate for the
next Dividend Period for the related AMPS by telephone or through its Auction
Processing System as set forth in Section 1 of the Settlement Procedures.
2.5 Broker-Dealers.
(a) Not later than 12:00 noon on each Dividend Payment Date, the Auction Agent
after each Auction will pay a service charge from funds provided by the Fund to
each Broker-Dealer on the basis of the purchase price of AMPS placed by such
Broker-Dealer at such Auction. The service charge shall be (i) in the case of
any Auction Date immediately preceding a Dividend Period of less than one year,
the product of (A) a fraction the numerator of which is the number of days in
such Dividend Period and the denominator of which is 360, times (B) 1/4 of 1%,
times (C) $25,000 times (D) the sum of (I) the aggregate number of AMPS placed
by the Broker-Dealer in the applicable Auction that were (x) the subject of a
Submitted Bid of a Beneficial Owner submitted by the Broker-Dealer and continued
to be held as a result of such submission and (y) the subject of a Submitted Bid
of a Potential Beneficial Owner submitted by the Broker-Dealer and were
purchased as a result of such submission plus (II) the aggregate number of AMPS
subject to valid Hold Orders (determined in accordance with Section 2 of Part II
of the Statement) submitted to the Auction Agent by the Broker-Dealer plus (III)
the number of AMPS deemed to be subject to Hold Orders by Beneficial Owners
pursuant to Section 2 of Part II of the Statement that were acquired by the
Broker-Dealer for its own account or were acquired by such Beneficial Owners
through the Broker-Dealer; and (ii) in the case of any Special Rate Period of
one year or longer the amount determined by mutual consent of the Fund and any
such Broker-Dealer or Broker-Dealers and shall be based upon a selling
concession that would be applicable to an underwriting of fixed or variable rate
preferred shares with a similar final maturity or variable rate dividend period,
respectively, at the commencement of the Special Rate Period with respect to
such Auction.
For purposes of subclause (a)(D)(II) of the foregoing sentence, if any
Beneficial Owner who acquired AMPS through a Broker-Dealer transfers those
shares to another Person other than pursuant to an Auction, then the
Broker-Dealer for the shares so transferred shall continue to be the
Broker-Dealer, provided, however, that if the transfer was effected by, or if
the transferee is, a Broker-Dealer other than that Broker-Dealer, then such
Broker-Dealer shall be the Broker-Dealer for such shares.
Notwithstanding any provision of the Auction Procedures of the
Settlement Procedures to the contrary, in the event a Broker-Dealer is an
Existing Holder with respect to any AMPS and the Auction Procedures provide that
a Broker-Dealer shall be deemed to have submitted a Sell Order in an Auction
with respect to such shares if the Broker-Dealer fails to submit an Order in
that Auction with respect to such shares, a Broker-Dealer shall have no
liability to any Person failing to sell such shares pursuant to such a deemed
Sell Order if (i) such shares were transferred by the Beneficial Owner thereof
without notification of such transfer in compliance with the Auction Procedures
or (ii) a Broker-Dealer has indicated to the Auction Agent pursuant to Section
3.2(c) of this Agreement that, according to the Broker-Dealer's records, the
Broker-Dealer is not an Existing Holder of such shares.
(b) The Fund shall not designate any Person to act as a Broker-Dealer, or permit
an Existing Holder or a Potential Beneficial Owner to participate in Auctions
through any Person other than a Broker-Dealer, without the prior written
approval of the Auction Agent, which approval shall not be withheld
unreasonably. The Fund may designate an Affiliate or Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx to act as a Broker-Dealer.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement as set forth
therein if so directed by the Fund provided that at least one Broker-Dealer
Agreement would be in effect for each series of AMPS after such termination.
(d) Subject to Section 2.5(b) hereof, the Auction Agent from time to time shall
enter into such Broker-Dealer Agreements as the Fund shall request.
(e) The Auction Agent shall maintain a list of Broker-Dealers.
2.6 Special Rate Periods.
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The provisions contained in Section 3 of Part I of the Statement
concerning Special Rate Periods and the notification of a Special Rate Period
will be followed by the Fund and, to the extent applicable, the Auction Agent,
and the provisions contained therein are incorporated herein by reference in
their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions were set forth fully herein.
2.7 Ownership of AMPS and Submission of Bids by the Fund and its Affiliates.
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Neither the Fund nor any Affiliate of the Fund may submit an Order in
any Auction, except that an Affiliate of the Fund that is a Broker-Dealer may
submit an Order, but only if such Orders are not for its own account. The Fund
shall notify the Auction Agent if the Fund or, to the best of the Fund's
knowledge, any Affiliate of the Fund becomes a Beneficial Owner of any AMPS.
Pursuant to the Statement of the Fund, the Fund and the Fund's Affiliates shall
be prohibited from reissuing and its Affiliates (other than the underwriters
party to the Purchase Agreement between Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated as representative of the underwriters named in Schedule A thereto,
and the Fund dated April __, 2003 will be prohibited from transferring (other
than to the Fund or pursuant to an Auction) any AMPS they may acquire. The
restrictions in this Section 2.6 shall in no way limit the activities of the
Auction Agent. The Auction Agent shall have no duty or liability with respect to
enforcement of this Section 2.6.
2.8 Access to and Maintenance of Auction Records.
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The Auction Agent shall afford to the Fund and its agents, independent
public accountants and counsel access at reasonable times during normal business
hours to review and make extracts or copies (at the Fund's sole cost and
expense) of all books, records, documents and other information concerning the
conduct and results of Auctions, provided that any such agent, accountant or
counsel shall furnish the Auction Agent with a letter from the Fund requesting
that the Auction Agent afford such person access. The Auction Agent shall
maintain records relating to any Auction for a period of at least two years
after such Auction, and such records, in reasonable detail, shall accurately and
fairly reflect the actions taken by the Auction Agent hereunder. The Fund agrees
to keep confidential any information regarding the customers of any
Broker-Dealer received from the Auction Agent in connection with this Agreement
or any Auction, and shall not disclose such information or permit the disclosure
of such information without the prior written consent of the applicable
Broker-Dealer to anyone except such agent, accountant or counsel engaged to
audit or review the results of Auctions as permitted by this Section 2.7. The
Fund reserves the right to disclose any such information if it is advised by its
counsel that its failure to do so would (i) be unlawful or (ii) expose it to
liability, unless the Broker-Dealer shall have offered indemnification
satisfactory to the Fund. Any such agent, accountant or counsel, before having
access to such information, shall agree to keep such information confidential
and not to disclose such information or permit disclosure of such information
without the prior written consent of the applicable Broker-Dealer, provided that
such agent, accountant or counsel may reserve the right to disclose any such
information if it is advised by its counsel that its failure to do so would (i)
be unlawful or (ii) expose it to liability, unless the Broker-Dealer shall have
offered indemnification satisfactory to such agent, accountant or counsel.
2.9 Auction Procedures.
The provisions contained in Part II of the Statement concerning Auction
Procedures will be followed by the Fund and, to the extent applicable, the
Auction Agent, and the provisions contained therein are incorporated herein by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions were set forth fully herein.
III. THE AUCTION AGENT AS PAYING AGENT.
3.1 The Paying Agent.
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The Board of Trustees of the Fund has adopted resolutions appointing
Deutsche Bank Trust Company Americas as Auction Agent and dividend paying agent
(in such capacity, the "Paying Agent"). The Paying Agent hereby accepts such
appointment and agrees to act in accordance with its standard procedures and the
provisions of the Statement which are specified herein with respect to the AMPS
and as set forth in this Section 3.
3.2 The Fund's Notices to the Paying Agent.
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Whenever any AMPS are to be redeemed, the Fund shall mail a Notice of
Redemption by first-class mail, postage prepaid, to each Holder of AMPS being
redeemed and to the Paying Agent pursuant to the Statement.
3.3 The Fund to Provide Funds for Dividends and Redemptions.
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(a) Not later than 12:00 noon on the Business Day next preceding each Dividend
Payment Date, the Fund shall deposit with the Paying Agent an aggregate amount
of federal funds or similar same-day funds equal to the declared dividends to be
paid to Holders on such Dividend Payment Date and shall give the Paying Agent
irrevocable instructions to apply such funds to the payment of such dividends on
such Dividend Payment Date.
(b) If the Fund shall give a Notice of Redemption, then by noon of the date
fixed for redemption, the Fund shall deposit in trust with the Paying Agent an
aggregate amount of Federal Funds or similar same-day funds sufficient to redeem
such AMPS called for redemption and shall give the Paying Agent irrevocable
instructions and authority to pay the redemption price to the Holders of AMPS
called for redemption upon surrender of the certificate or certificates
therefor.
3.4 Disbursing Dividends and Redemption Price.
After receipt of the Federal Funds or similar same-day funds and
instructions from the Fund described in Section 3.3 above, the Paying Agent
shall pay to the Holders (or former Holders) entitled thereto (i) on each
corresponding Dividend Payment Date, dividends on the AMPS, and (ii) on any date
fixed for redemption, the redemption price of any AMPS called for redemption.
The amount of dividends for any Dividend Period to be paid by the Paying Agent
to Holders will be determined by the Fund as set forth in Section 2(e) of Part I
of the Statement. The redemption price to be paid by the Paying Agent to the
Holders of any AMPS called for redemption will be determined as set forth in
Section 9 of Part I of the Statement.
IV. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.
4.1 Original Issue of Share Certificates.
On the Date of Original Issue for any Preferred Share, one certificate
for each series of AMPS shall be issued by the Fund and registered in the name
of Cede & Co., as nominee of the Securities Depository, and countersigned by the
Paying Agent.
4.2 Registration of Transfer or Exchange of Shares.
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Shares of each series of AMPS shall be registered solely in the name of
the Securities Depository or its nominee.
4.3 Removal of Legend.
Any request for removal of a legend indicating a restriction on
transfer from a certificate evidencing Preferred Shares shall be accompanied by
an opinion of counsel stating that such legend may be removed and such shares
may be transferred free of the restriction described in such legend, said
opinion to be delivered under cover of a letter from a Fund Officer authorizing
the Paying Agent to remove the legend on the basis of said opinion.
4.4 Lost, Stolen or Destroyed Share Certificates.
The Paying Agent shall issue and register replacement certificates for
certificates represented to have been lost, stolen or destroyed, upon the
fulfillment of such requirements as shall be deemed appropriate by the Fund and
by the Paying Agent, subject at all times to provisions of law, the Statement
governing such matters and resolutions adopted by the Fund with respect to lost,
stolen or destroyed securities. The Paying Agent may issue new certificates in
exchange for and upon the cancellation of mutilated certificates. Any request by
the Fund to the Paying Agent to issue a replacement or new certificate pursuant
to this Section 4.4 shall be deemed to be a representation and warranty by the
Fund to the Paying Agent that such issuance will comply with provisions of
applicable law and the Statement and resolutions of the Fund.
4.5 Disposition of Canceled Certificates; Record Retention.
The Paying Agent shall retain share certificates which have been
canceled in transfer or in exchange and accompanying documentation in accordance
with applicable rules and regulations of the Securities and Exchange Commission
(the "Commission") for at least two calendar years from the date of such
cancellation. The Paying Agent, upon written request by the Fund, shall afford
to the Fund, its agents and counsel access at reasonable times during normal
business hours to review and make extracts or copies (at the Fund's sole cost
and expense) of such certificates and accompanying documentation. Upon the
expiration of this two-year period, the Paying Agent shall deliver to the Fund
the canceled certificates and accompanying documentation. The Paying Agent also
shall undertake to furnish to the Commission, upon demand, either at its
principal office or at any regional office, complete, correct and current hard
copies of any and all such records. Thereafter, such records shall not be
destroyed by the Fund without the approval of the Paying Agent, which approval
shall not be withheld unreasonably, but will be safely stored for possible
future reference.
4.6 Share Register.
The Paying Agent shall maintain the share register, which shall contain
a list of the Holders, the number of shares held by each Holder and the address
of each Holder. The Paying Agent shall record in the share register any change
of address of a Holder upon notice by such Holder. In case of any written
request or demand for the inspection of the share register or any other books of
the Fund in the possession of the Paying Agent, the Paying Agent will notify the
Fund and secure instructions as to permitting or refusing such inspection. The
Paying Agent reserves the right, however, to exhibit the share register or other
records to any person in case it is advised by its counsel that its failure to
do so would be unlawful.
4.7 Return of Funds.
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Any funds deposited with the Paying Agent by the Fund for any reason
under this Agreement, including for the payment of dividends or the redemption
of AMPS, that remain with the Paying Agent after sixty days shall be repaid to
the Fund upon written request by the Fund.
V. REPRESENTATIONS AND WARRANTIES.
5.1 Representations and Warranties of the Fund.
The Fund represents and warrants to the Auction Agent that:
(i) the Fund has been duly organized and is validly existing as a statutory
trust under the laws of The State of Delaware and has full power to execute and
deliver this Agreement and to authorize, create and issue the AMPS;
(ii) the Fund is registered with the Commission under the 1940 Act as a
closed-end, diversified, management investment company;
(iii) this Agreement has been duly and validly authorized, executed and
delivered by the Fund and constitutes the legal, valid and binding obligation of
the Fund, enforceable against the Fund in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equitable principles;
(iv) the form of the certificates evidencing the Preferred Shares comply with
all applicable laws of The State of Delaware;
(v) the AMPS have been duly and validly authorized by the Fund and, upon
completion of the initial sale of the AMPS and receipt of payment therefor, will
be validly issued by the Fund, fully paid and nonassessable;
(vi) at the time of the offering of the AMPS, the shares offered will be
registered under the Securities Act and no further action by or before any
governmental body or authority of the United States or of any state thereof is
required in connection with the execution and delivery of this Agreement or will
be required in connection with the issuance of the AMPS, except such action as
required by applicable state securities laws;
(vii) the execution and delivery of this Agreement and the issuance and delivery
of the AMPS do not and will not conflict with, violate or result in a breach of
the terms, conditions or provisions of, or constitute a default under, the
Agreement and Declaration of Trust, any order or decree of any court or public
authority having jurisdiction over the Fund or any mortgage, indenture,
contract, agreement or undertaking to which the Fund is a party or by which it
is bound the effect of which conflict, violation, default or breach would be
material to the Fund; and
(viii) no taxes are payable upon or in respect of the execution of this
Agreement or will be payable upon or in respect of the issuance of the AMPS.
5.2 Representations and Warranties of the Auction Agent.
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The Auction Agent represents and warrants to the Fund that:
(i) The Auction Agent is duly organized and is validly existing as a banking
corporation in good standing under the laws of the State of New York and has the
corporate power to enter into and perform its obligations under this Agreement;
and
(ii) this Agreement has been duly and validly authorized, executed and delivered
by the Auction Agent and constitutes the legal, valid and binding obligation of
the Auction Agent, enforceable against the Auction Agent in accordance with its
terms, subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equitable principles.
VI. THE AUCTION AGENT.
6.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the Fund hereunder and owes
no fiduciary duties to any Person except as provided by this Agreement.
(b) The Auction Agent undertakes to perform such duties and only such duties as
are set forth specifically in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Auction Agent.
(c) In the absence of bad faith or negligence on its part, the Auction Agent
shall not be liable for any action taken, suffered or omitted by it, or for any
error of judgment made by it in the performance of its duties under this
Agreement. The Auction Agent shall not be liable for any error of judgment made
in good faith unless the Auction Agent shall have been negligent in ascertaining
the pertinent facts.
6.2 Rights of the Auction Agent.
(a) The Auction Agent may conclusively rely upon, and shall be protected in
acting or refraining from acting upon, any communication authorized by this
Agreement and any written instruction, notice, request, direction, consent,
report, certificate, share certificate or other instrument, paper or document
reasonably believed by it to be genuine. The Auction Agent shall not be liable
for acting upon any telephone communication authorized by this Agreement which
the Auction Agent reasonably believes in good faith to have been given by the
Fund or by a Broker-Dealer. The Auction Agent may record telephone
communications with the Fund or with the Broker-Dealers or with both.
(b) The Auction Agent may consult with counsel of its choice, and the advice of
such counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or risk its own
funds or otherwise incur or become exposed to financial liability in the
performance of its duties hereunder.
(d) The Auction Agent may perform its duties and exercise its rights hereunder
either directly or by or through agents or attorneys and shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed by it with due care hereunder.
(e) The Auction Agent shall not be responsible or liable for any failure or
delay in the performance of its obligations under this Agreement arising out of
or caused, directly or indirectly, by circumstances beyond its reasonable
control, it being understood that the Auction Agent shall use reasonable efforts
which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
6.3 Compensation, Expenses and Indemnification.
(a) The Fund shall pay to the Auction Agent from time to time compensation for
all services rendered by it under this Agreement and under the Broker-Dealer
Agreements as shall be set forth in a separate writing signed by the Fund and
the Auction Agent.
(b) The Fund shall reimburse the Auction Agent upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Auction
Agent in accordance with any provision of this Agreement and of the
Broker-Dealer Agreements (including the compensation, expenses and disbursements
of its agents and counsel), except any expense, disbursement or advance
attributable to its negligence or bad faith. In no event shall the Auction Agent
be responsible or liable for special, indirect or consequential loss or damage
of any kind whatsoever (including, but not limited to, loss of profit), even if
the Auction Agent has been advised of the likelihood of such loss or damage and
regardless of the form of action.
(c) The Fund shall indemnify the Auction Agent for and hold it harmless against
any loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with its agency under the Agreement and
the Broker-Dealer Agreements, including the costs and expenses of defending
itself against any such claim or liability in connection with its exercise or
performance of any of its duties hereunder and thereunder.
6.4 Auction Agent's Disclaimer.
(a) The Auction Agent makes no representation as to the validity or adequancy of
the Agreement, the Broker-Dealer Agreements or the AMPS of any series except
that the Auction Agent hereby represents that the Agreement has been duly
authorized, executed and delivered by the Auction Agent and constitutes a legal
and binding obligation of the Auction Agent.
VII. MISCELLANEOUS.
7.1 Term of Agreement.
(a) The term of this Agreement is unlimited unless it shall be terminated as
provided in this Section 7.1. The Fund may terminate this Agreement at any time
by so notifying the Auction Agent, provided that, if any AMPS remain
outstanding, the Fund shall have entered into an agreement with a successor
auction agent. The Auction Agent may terminate this Agreement upon prior notice
to the Fund on the date specified in such notice, which date shall be no earlier
than 60 days after delivery of such notice. If the Auction Agent terminates this
Agreement while any AMPS remain outstanding, the Fund shall use its best efforts
to enter into an agreement with a successor auction agent containing
substantially the same terms and conditions as this Agreement.
(b) Except as otherwise provided in this Section 7.1(b), the respective rights
and duties of the Fund and the Auction Agent under this Agreement shall cease
upon termination of this Agreement. The Fund's representations, warranties,
covenants and obligations to the Auction Agent under Section 6.3 hereof shall
survive the termination hereof. The Auction Agent's representations, warranties,
covenants and obligations under Section 6.1 shall survive the termination
hereof. Upon termination of the Agreement with respect to any series of AMPS,
the Auction Agent shall, at the Fund's request resign as Auction Agent under the
Broker-Dealer Agreements, promptly deliver to the Fund copies of all books and
records maintained by it with respect to AMPS in connection with its duties
hereunder and to any successor Auction Agent any funds then held by the Auction
Agent for the benefit of the Holders of AMPS or the Fund.
7.2 Communications.
Except for (i) communications authorized to be made by telephone
pursuant to this Agreement or the Auction Procedures and (ii) communications in
connection with Auctions (other than those expressly required to be in writing),
all notices, requests and other communications to any party hereunder shall be
in writing (including telecopy or similar writing) and shall be given to such
party at its address or telecopier number set forth below:
If to the Fund, Evergreen Income Advantage Fund
addressed to:
c/o Evergreen Investment Management Company, LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: 617-210-
Telephone No.: 617-210-
If to the Auction Agent, Deutsche Bank Trust Company Americas Corporate
addressed to: Trust & Agency Services
000 Xxxx Xxxxxx, 0xx
Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
or such other address or telecopier number as such party hereafter may specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Fund by a Fund Officer and on
behalf of the Auction Agent by an Authorized Officer.
7.3 Entire Agreement.
This Agreement contains the entire agreement between the parties
relating to the subject matter hereof, and there are no other representations,
endorsements, promises, agreements or understandings, oral, written or implied,
between the parties relating to the subject matter hereof, except for agreements
relating to the compensation of the Auction Agent.
7.4 Benefits.
---------
Nothing herein, express or implied, shall give to any Person, other
than the Fund, the Auction Agent and their respective successors and assigns,
any benefit of any legal or equitable right, remedy or claim hereunder.
7.5 Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be modified, amended,
rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged.
(b) Failure of either party hereto to exercise any right or remedy hereunder in
the event of a breach hereof by the other party shall not constitute a waiver of
any such right or remedy with respect to any subsequent breach.
7.6 Successors and Assigns.
The Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and assigns of each of the Fund and
the Auction Agent. This Agreement may not be assigned by either party hereto
absent the prior written consent of the other party, which consent shall not be
unreasonably withheld.
7.7 Severability.
If any clause, provision or section hereof shall be ruled invalid or
unenforceable by any court of competent jurisdiction, the invalidity or
unenforceability of such clause, provision or section shall not affect any of
the remaining clauses, provisions or sections hereof.
7.8 Execution in Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
7.9 Governing Law.
--------------
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to agreements made and to be
performed in said state.
7.10 Limitation of Liability.
The Fund's Amended and Restated Certificate of Trust is on file with
the Secretary of State of The State of Delaware. This Agreement is executed on
behalf of the Fund by the Fund's officers as officers and not individually, and
the obligations imposed upon the Fund by this Agreement are not binding upon any
of the Fund's Trustees, officers or shareholders individually but are binding
only upon the assets and property of the Fund.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
EVERGREEN INCOME ADVANTAGE
FUND
By:
Name:
Title:
DEUTSCHE BANK TRUST
COMPANY AMERICAS
By:
Name:
Title:
EXHIBIT A
FORM OF BROKER-DEALER AGREEMENT
