FORM OF BROKER-DEALER AGREEMENT
This Broker-Dealer Agreement dated as of June 25, 2004 is between Deutsche
Bank Trust Company Americas, a New York banking corporation (the "Auction
Agent") (not in its individual capacity, but solely as agent of Evergreen
Utilities and High Income Fund (the "Fund"), pursuant to authority granted to it
in the Auction Agency Agreement dated as of June 25, 2004, between the Fund and
the Auction Agent (the "Auction Agency Agreement") and Citigroup Global Markets
Inc. (together with its successors and assigns, "BD").
The Fund proposes to issue an aggregate of 3,200 preferred shares, no
par value per share, liquidation preference $25,000 per share, designated
as Auction Preferred Shares, Series M28 (the "Preferred Shares"), pursuant
to the Fund's Statement (as defined below)
As provided in and subject to the Fund's Statement, for the Preferred
Shares then outstanding, the Applicable Rate for Preferred Shares for each
subsequent Dividend Period shall be equal to the rate per annum that results
from an Auction for outstanding Preferred Shares on the respective Auction Date
therefore next preceding the period from and after the Date of Original Issue to
and including the last day of the initial Dividend Period. 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, and pursuant
to Section 2.1 of the Auction Agency Agreement, the Fund has requested and
directed the Auction Agent to execute and deliver this Agreement.
The Auction Procedures require the participation of one or more
Broker-Dealers.
NOW THEREFORE, in consideration of the premises and the mutual covenants
obtained herein, the Auction Agent and BD agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Terms Defined by Reference to the Certificate.
Capitalized terms user herein but not defined herein shall have the
respective meanings specified in the Statement.
1.2 Terms Defined Herein.
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) "Auction" shall have the meaning specified in Section 2.1 of the
Auction Agency Agreement.
(b) "Auction Procedures" shall mean the procedures for conducting
Auctions that are set forth in Part II of the Statement.
(c) "Authorized Officer" shall mean each Director, Vice President,
Assistant Vice President and Associate of the Auction Agent and every other
officer or employee of the Auction Agent designed as an "Authorized Officer" for
purposes of this Agreement in a communication to BD.
(d) "BD Officer" shall mean each officer or employee of BD designated as a
"BD Officer" for purpose of this Agreement in a communication to the Auction
Agent.
(e) "Broker-Dealer Agreement" shall mean this Agreement and any
substantially similar agreement between the Auction Agent and a Broker-Dealer.
(f) "Settlement Procedures" shall mean the Settlement Procedures attached
hereto as Exhibit A.
(g) "Statement" shall mean the Statement of Preferences for Auction
Preferred Shares specifying the powers, preferences and rights of the preferred
shares.
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 numbers 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 the
affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto" and other words of similar
impact referred to this Agreement as a whole.
(d) All references herein to a particular time of day shall be to New York
City time.
II. NOTIFICATION OF DIVIDEND.
The provisions contained in Section 3 of Part II of the Statement
concerning the notification of a Special Dividend Period will be
followed by the Auction Agent and BD, 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.
3.1 Purpose: Incorporation by Reference of Auction Procedures and Settlement
Procedures.
(a) On each Auction Date, the provisions of the Auction Procedures will be
followed by the Auction Agent for the purpose of determining the Applicable Rate
for the Preferred Shares, for each 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 the
Settlement Procedures are incorporated herein by reference in their entirety and
shall be deemed to be part of this Agreement to the same extent as if such
provisions were set fully herein.
(c) BD agrees to act as, and assumes the obligations of and limitations and
restrictions placed upon, a Broker-Dealer under this Agreement. BD understands
that other Persons meeting the requirements specified in the definition of
"Broker-Dealer" contained in the "Definitions" section of the Statement may
execute a Broker-Dealer Agreement and participate as Broker-Dealers in Auctions.
(d) BD and other Broker-Dealers may participate in Auctions for their own
accounts. However, the Fund, by notice to BD and all other Broker Dealers, may
prohibit all Broker-Dealers from submitting Bids in Auctions for their own
accounts, provided that Broker-Dealers may continue to submit Hold Orders and
Sell Orders.
3.2 Preparation for Each Auction.
(a) Not later than 9:30 A.M. on each Auction Date for the Preferred Shares,
the Auction Agent shall advise BD by telephone of the Reference Rate and the
Maximum Rate in effect on such Auction Date.
(b) In the event that the Auction Date for any Auction shall be
changed after the Auction Agent has given the notice referred to in paragraph
(a)(vii) of the Settlement Procedures, the Auction Agent, by such means as the
Auction Agent reasonably deems practicable, shall give notice of such change to
BD 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. Thereafter, BD promptly shall notify customers of BD
that BD believes are Beneficial Owners of Preferred Shares of such change in the
Auction Date.
(c) The Auction Agent from time to time may request BD to provide it with a
list of the respective customers BD believes are Beneficial Owners of Preferred
Shares. BD shall comply with any such request, and the Auction Agent shall keep
confidential any such information, including information received as to the
identity of Bidders in any Auction, and shall not disclose any such information
so provided to any Person other than the Fund; and such information shall not be
used by the Auction Agent or its officers, employees, agents or representatives
for any purpose other than such purposes as are describe herein. The Auction
Agent shall transmit any list of customers BD believes are Beneficial Owners of
Preferred Shares and information related thereto only to its officers,
employees, agents or representatives who need to know such information for the
purposes of acting in accordance with this Agreement, and the Auction Agent
shall prevent the transmission of such information to others and shall cause its
officers, employees, agents and representatives to abide by the foregoing
confidentiality restrictions.
3.3 Auction Schedule: Method of Submission of Orders.
(a) The Fund and the Auction Agent shall normally conduct Auctions every 28
days after the first Auction (usually Monday) in accordance with the schedule
set forth below.
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 3.2(a) 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 Preferred Shares 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 3.4(a) hereof.
(b) BD agrees to maintain a list of Potential Beneficial Owners and to
contact the Potential Beneficial Owners on such list on or prior to each Auction
Date for the purposes set forth in Section (2) of Part II of the Statement.
(c) BD shall submit Orders to the Auction Agent in writing in substantially
the form attached hereto as Exhibit B. BD shall submit separate Orders to the
Auction Agent for each Potential Beneficial Owner or Beneficial Owner on whose
behalf BD is submitting an Order and shall not net or aggregate the Orders of
Potential Beneficial Owners or Beneficial Owners on whose behalf BD is
submitting Orders.
(d) BD shall deliver to the Auction Agent (i) a written notice,
substantially in the form attached hereto as Exhibit C, of transfers of
Preferred Shares, made through BD by an Existing Holder to another Person other
than pursuant to an Auction, and (ii) a written notice, substantially in the
form attached hereto as Exhibit D, of the failure of Preferred Shares to be
transferred to or by any Person that purchased or sold Preferred Shares through
BD pursuant to an Auction. The Auction Agent is not required to accept any
notice delivered pursuant to the terms of the foregoing sentence with respect to
an Auction unless it is received by the Auction Agent by 3:00 P.M on the
Business Day preceding the applicable Auction Date.
3.4 Notice of Auction Results.
(a) On each Auction Date, the Auction Agent shall notify the BD of the
results of the Auction by telephone or through the Auction Agent's auction
processing system as set forth in paragraph (a) of the Settlement Procedures. On
the Business Day next succeeding such Auction Date, the Auction Agent shall
notify BD in writing on the disposition of all Orders submitted by BD in the
Auction held on such Auction Date.
(b) BD shall notify each Beneficial Owner, Potential Beneficial Owner,
Existing Holder or Potential Holder on whose behalf BD has submitted an Order as
set forth in paragraph (b) of the Settlement Procedures, and take such other
action as required of BD pursuant to the Settlement Procedures.
If any Beneficial Owner or Existing Holder selling Preferred Shares in an
Auction fails to deliver such shares, the Broker-Dealer of any Person that was
to have purchased Preferred Shares in such Auction may deliver to such Person a
number of whole Preferred Shares that is less than the number of shares that
otherwise was to be purchase by such Person. In such event, the number of
Preferred Shares to be so delivered shall be determined by such Broker-Dealer.
Delivery of such lesser number of shares shall constitute good delivery. Up on
the occurrence of any such failure to deliver shares, such Broker-Dealer shall
deliver to the Auction Agent the notice required by Section 3.3(d)(ii) hereof.
Notwithstanding the foregoing terms of this Section 3.4(b), any delivery or
non-delivery of Preferred Shares which represents any departure from the results
of an Auction, as determined by the Auction Agent, shall be of no effect unless
and until the Auction Agent shall have been notified of such delivery or
non-delivery in accordance with the terms of Section 3.3(d) hereof.
3.5 Service Charge to be Paid to BD.
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 BD on the basis of the purchase price of Preferred Shares placed by
BD at such Auction. The service charge shall be (i) in the case of any
Auction Date immediately preceding a Dividend Period of less than a 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) and the aggregate number
of Preferred Shares placed by BD in the applicable Auction that were (x)
the subject of a Submitted Bid of a Beneficial Owner submitted by BD 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 BD and were
purchased as a result of such submission plus (II) the aggregate number of
Preferred Shares subject to valid Hold Orders (determined in accordance
with Section 2 of Part II of the Statement) submitted to the Auction Agent
by BD plus (III) the number of Preferred Shares deemed to be subject to
Hold Orders by Beneficial Owners pursuant to Section 2 of Part II of the
Statement that were acquired by BD for its own account or were acquired by
such Beneficial Owners through BD; and (ii) in the case of any Special
Dividend Period of one year or longer, the amount determined by mutual
consent of the Fund and BD 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 such Special Dividend Period.
For purposes of subclause (i)(D)(III) of the foregoing sentence, if any
Beneficial Owner who acquired Preferred Shares 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.
IV. THE AUCTION AGENT.
4.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the Fund hereunder and
owes no fiduciary duties to any other Person by such reason of 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 such taken, suffered or omitted by it, or for
any error of judgment made by it in the performance of its duties under this
Agreement.
4.2 Rights for the Auction Agent.
(a) The Auction Agent may 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 of by BD.
The Auction Agent may record telephone communications with the Fund or with BD
or with both.
(b) The Auction Agent may consult with counsel of its own 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 reasonable 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.
4.3 Auction Agent's Disclaimer.
The Auction Agent makes no representation as to the validity or adequacy of this
Agreement or the Preferred Shares.
V. MISCELLANEOUS.
5.1 Termination.
Any party may terminate this Agreement at any time upon five days'
prior written notice and the other party: provided, however, that if
the Broker-Dealer is Citigroup Global Markets, Inc., either Citigroup
Global Markets Inc. or the Auction Agent may terminate this Agreement
only upon 60 days' prior written notice to the other party and to the
Fund.
5.2 Participant in Securities Depository: Payment of Dividends in Same-Day
Funds.
(a) BD is, and shall remain for the terms of this Agreement, a member or,
or a participant in, the Securities Depository (or an affiliate of such a member
or participant).
(b) BD represents that is (or if BD does not act as Agent Member, one of
its affiliates) shall make all dividend payments on the Preferred Shares
available in same-day funds on each Dividend Payment Date to customers that use
BD (or its affiliates) as Agent Member.
5.3 Agent Member.
At the date hereof, BD is a participant of the Securities Depository.
5.4 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 the Auctions (other than those expressly required in writing), all notices,
request and other communications to any party hereunder shall be in writing
(including telecopy or similar writing) and shall be given to such party as its
address or telecopier number set forth below:
If to the Auction Agent, addressed to: Deutsche Bank Trust Company Americas
Trust & Securities Services
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Auction Rate Securities
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the BD addressed to: Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Short Term Trading Desk
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or telecopier number as 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 BD by a BD Officer and on behalf of
the Auction Agent by an Authorized Officer. BD may record telephone
communications with the Auction Agent.
5.5 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.
5.6 Benefits.
Nothing in this Agreement, expressed or implied, shall give to any
person, other than the Fund, which is a third-party beneficiary of this
Agreement, the Auction Agent and BD and their respective successors and
assigns, any benefit of any legal or equitable right, remedy or claim
under this Agreement.
5.7 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
and by the Fund.
(b) Failure of either party to this Agreement to exercise any right or
remedy hereunder in the event of a breach of this Agreement by the other party
shall not constitute a waiver of any such right or remedy with respect to any
subsequent breach.
5.8 Successors and Assigns.
(a) This Agreement shall be binding upon, inure to the benefit of, and
be enforceable by, the respective successors and permitted assigns of each of BD
and the Auction Agent. This Agreement may not be assigned by either party hereto
absent the prior written consent of the other party; provided, however, that
this Agreement may be assigned by the Auction Agent to a successor Auction Agent
selected by the Fund without the consent of BD.
5.9 Severability.
(a) If any clause, provision or section of this Agreement shall be ruled
invalid or enforceable by any court of competent jurisdiction, the invalidity or
unenforceability of such clause, provision or section shall not affect any
remaining clause, provision or section hereof.
5.10 Execution in Counterparts.
(a) 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.
5.11 Governing Law.
(a) 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.
[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 mention.
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: _______________________________________
Name:
Title:
CITIGROUP GLOBAL MARKETS INC.
By: ________________________________________
Name:
Title:
EXHIBIT A
SETTLEMENT PROCEDURES
Capitalized terms used herein shall have the respective meanings
specified in the Statement.
(a) On each Auction Date, the Auction Agent shall notify by telephone or
through the Auction Agent's auction processing system the Broker-Dealers that
participated in the Auction held on such Auction Date and submitted an Order on
behalf of any Beneficial Owner or Potential Beneficial Owner of:
(i) the Applicable Rate fixed for the next succeeding Dividend
Period;
(ii) whether Sufficient Clearing Bids existed for the determination of
the Applicable Rate;
(iii)if such Broker-Dealer (a "Seller's Broker-Dealer") submitted a
Bid or a Sell Order on behalf of a Beneficial Owner, the number
of Preferred Shares, if any, to be sold by such Beneficial Owner;
(iv) if such Broker-Dealer (a "Buyer's Broker-Dealer") submitted a Bid
on behalf of a Potential Beneficial Owner, the number of
Preferred Shares, if any, to be purchased by such Potential
Beneficial Owner;
(v) if the aggregate number of Preferred Shares to be sold by all
Beneficial Owners on whose behalf such Broker-Dealer submitted a
Bid or a Sell Order exceeds the aggregate number of Preferred
Shares to be purchased by all Potential Beneficial Owners on
whose behalf such Broker-Dealer submitted a Bid, the name or
names of one or more Buyer's Broker-Dealers (and the name of the
Agent Member, if any, of each such Buyer's Broker-Dealer) acting
for one or more purchasers of such excess number of Preferred
Shares and the number of such shares to be purchased from one or
more Beneficial Owners on whose behalf such Broker-Dealer acted
by one or more Potential Beneficial Owners on whose behalf each
of such Buyer's Broker-Dealers acted;
(vi) if the aggregate number of Preferred Shares to be purchased by
all Potential Beneficial Owners on whose behalf such
Broker-Dealer submitted a Bid exceeds the aggregate number of
Preferred Shares to be sold by all Beneficial Owners on whose
behalf such Broker-Dealer submitted a Bid or a Sell Order, the
name or names of one or more Seller's Broker-Dealers (and the
name of the Agent Member, if any, of each such Seller's
Broker-Dealer) acting for one or more sellers of such excess
number of Preferred Shares and the number of such shares to be
sold to one or more Potential Beneficial Owners on whose behalf
such Broker-Dealer acted by one or more Beneficial Owners on
whose behalf each of such Seller's Broker-Dealers acted; and
(vii)the Auction Date of the next succeeding Auction with respect to
the Preferred Shares.
(b) On each Auction Date, each broker-Dealer that submitted an Order on
behalf of any Beneficial Owner or Potential Beneficial Owner shall:
(i) (aa) in the case of a Broker-Dealer that is a Buyer's
Broker-Dealer, instruct each Potential Beneficial Owner on
whose behalf such Broker-Dealer submitted a Bid that we
accepted, in whole or in part, to instruct such Potential
Beneficial Owner's Agent Member to pay to such Broker-Dealer
(or its Agent Member) through the Securities Depository the
amount necessary to purchase the number of Preferred Shares
to be purchased pursuant to such Bid against receipt of such
shares and advise such Potential Beneficial Owner of the
Applicable Rate for the next succeeding Dividend Period,
and, (bb) in the case that the aggregate number of Preferred
Shares to be purchased by all Potential Beneficial Owners on
whose behalf such Buyer's Broker-Dealer submitted a Bid
exceeds the aggregate number of Preferred Shares to be sold
by all Beneficial Owners on whose behalf such Broker-Dealer
submitted a Bid or a Sell Order, as described in (a)(vi),
then such Buyer's Broker-Dealer shall instruct each
Potential Beneficial Owner of such excess Preferred Shares
to instruct such Potential Beneficial Owner's Agent Member
to pay to the Seller's Broker-Dealer (or its Agent Member),
the names of whom are to be provided pursuant to (a)(vi),
through the Securities Depository the amount necessary to
purchase the number of such excess Preferred Shares to be
purchased by such Potential Beneficial Owner against receipt
of such shares;
(ii) (aa) in the case of a Broker-Dealer that is a Seller's
Broker-Dealer, instruct each Beneficial Owner on whose
behalf such Broker-Dealer submitted a Sell Order that was
accepted, in whole or in part, or a Bid that was accepted,
in whole or in part, to instruct such Beneficial Owner's
Agent Member to deliver to such broker-Dealer (or its Agent
Member) through the Securities Depository the number of
Preferred Shares to be sold pursuant to such Order against
payment therefor and advise any such Beneficial Owner that
will continue to hold Preferred Shares of the Applicable
Rate for the next succeeding Dividend Period, and, (bb) in
the case that the aggregate number of Preferred Shares to be
sold by all Beneficial Owners on whose behalf such
Broker-Dealer submitted a Bid or a Sell Order exceeds the
aggregate number of Preferred Shares to be purchased by all
Potential Beneficial Owners on whose behalf such
Broker-Dealer submitted a Bid, as described in (a)(v), then
such Seller's Broker-Dealer shall instruct each Beneficial
Owner of such excess Preferred Shares to instruct such
Beneficial Owner's Agent Member to deliver to the Buyer's
Broker-Dealer (or its Agent Member), the names of whom are
to be provided pursuant to (a)(v), through the Securities
Depository the number of Preferred Shares to be sold
pursuant to such Order against payment therefor;
(iii)advise each Beneficial Owner on whose behalf such
Broker-Dealer submitted a Hold Order of the Applicable Rate
for the next succeeding Dividend period;
(iv) advise each Beneficial Owner on whose behalf such
Broker-Dealer submitted an Order of the Auction Date for the
next succeeding Auction; and
(v) advise each Potential Beneficial Owner on whose behalf such
broker-Dealer submitted a Bid that was accepted, in whole or
in part, of the Auction Date for the next succeeding
Auction.
(c) On the basis of the information provided to it pursuant to (a) above,
each broker-Dealer that submitted a Bid or a Sell Order on behalf of a Potential
Beneficial Owner or a Beneficial Owner shall, in such manner and at such time or
times as in its sole discretion it may determine, allocate any funds received by
it pursuant to (b)(i) above and any Preferred Shares received by it pursuant to
(b)(ii) above among the Potential Beneficial Owners, if any, on whose behalf
such Broker-Dealer submitted Bids, the Beneficial Owner, if any, on whose behalf
such Broker-Dealer submitted Bids that were accepted or Sell Orders, and any
Broker-Dealer or Broker-Dealers identified to it by the Auction Agent pursuant
to (a)(v) or (a)(vi) above.
(d) On each Auction Date:
(i) each Potential Beneficial Owner and Beneficial Owner shall
instructs its Agent Member as provided in (b)(i) or (ii)
above, as the case may be;
(ii) each Seller's Broker-Dealer which is not an Agent Member of
the Securities Depository shall instruct its Agent Member to
(A) pay through the Securities Depository to the Agent
Member of the Beneficial Owner delivering shares to such
Broker-Dealer pursuant to (b)(ii) above the amount necessary
to purchase such shares against receipt of such shares, and
(B) deliver such shares through the Securities Depository to
a Buyer's Broker-Dealer (or its Agent Member) identified to
such Seller's Broker-Dealer pursuant to (a)(v) above against
payment therefore; and
(iii)each Buyer's Broker-Dealer which is not an Agent Member of
the Securities Depository shall instruct its Agent Member to
(A) pay through the Securities Depository to any Seller's
Broker-Dealer (or its Agent Member) identified pursuant to
(a)(vi) above the amount necessary to purchase the shares to
be purchased pursuant to (b)(i) above against receipt of
such shares, and (B) deliver such shares through the
Securities Depository to the Agent Member of the purchaser
thereof against payment therefor.
(e) On the day after the Auction Date:
(i) Each Bidder's Agent Member referred to in (d)(i) above shall
instruct the Securities Depository to execute the transactions
described in (b)(i) or (ii) above, and the Securities Depository
shall execute such transactions;
(ii) each Seller's Broker-Dealer or its Agent Member shall instruct
the Securities Depository to execute the transactions described
in (d)(ii) above, and the Securities Depository shall execute
such transactions; and
(iii)each Buyer's Broker-Dealer or its Agent Member shall instruct
the Securities Depository to execute the transactions described
in (d)(iii) above, and the Securities Depository shall execute
such transactions.
(f) If a Beneficial Owner selling Preferred Shares in an Auction fails to
deliver such shares (by authorized book-entry), a Broker-Dealer may deliver to
the Potential Beneficial Owner on behalf of which it submitted a Bid that was
accepted a number of whole Preferred Shares that is less than the number of
shares that otherwise was to be purchased by such Potential Beneficial Owner. In
such event, the number of Preferred Shares to be so delivered shall be
determined solely by such Broker-Dealer. Delivery of such lesser number of
shares shall constitute good deliver. Notwithstanding the foregoing terms of
this paragraph (f), any delivery or non-delivery of shares which shall represent
any departure from the results of an Auction, as determined by the Auction
Agent, shall be of no effect unless and until the Auction Agent shall have been
notified of such delivery or non-delivery in accordance with the provisions of
the Auction Agency Agreement and the Broker-Dealer Agreements.
EXHIBIT B
DEUTSCHE BANK TRUST COMPANY AMERICAS
AUCTION BID FORM
Submit To: Issue
Deutsche Bank Trust Company Americas Evergreen Utilities and High Income Fund
Trust & Securities Services Auction Preferred Shares,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Series M28 ("Preferred Shares")
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Auction Rate Securities
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
The undersigned Broker-Dealer submits the following Order on behalf of the
Bidder listed below:
Name of Bidder:_________________________
BENEFICIAL OWNER
Shares now held______________ HOLD___________________________
BID at rate of______________________
Series M28 SELL____________________________
POTENTIAL BENEFICIAL OWNER
# of shares______________
BID at rate of____________
Notes:
(1) If submitting more than one Bid for one Bidder, use additional
Auction Bid Forms.
(2) If one or more Bids covering in the aggregate more than the number
of outstanding shares held by any Beneficial Owner are submitted, such
bid shall be considered valid in the order of priority set forth in
the Auction Procedures on the above issue.
(3) A Hold or Sell Order may be placed only by a Beneficial Owner
covering a number of shares not greater than the number of shares
currently held.
(4) Potential Beneficial Owners may make only Bids, each of which must
specify a rate. If more than one Bid is submitted on behalf of any
Potential Beneficial Owner, each Bid submitted shall be a separate Bid
with the rate specified.
(5) Bids may contain no more than three figures to the right of the
decimal point (.001 of 1%). Fractions will not be accepted.
(6) An Order must be submitted in whole shares of Preferred Shares
with an aggregate liquidation preference of $25,000.
NAME OF BROKER-DEALER ____________________________________
Authorized Signature______________________________________________
EXHIBIT C
(Note: To be used only for transfers made other than pursuant to an Auction)
TRANSFER FORM
Re: Evergreen Utilities and High Income Fund
Auction Preferred Shares, Series M28
("Preferred Shares")
We are (check one):
[ ] the Existing Holder named below;
[ ] the Broker-Dealer for such Existing Holder; or
[ ] the Agent Member for such Existing Holder.
We hereby notify you that such Beneficial Owner has transferred
___________ Preferred Shares to ________________.
-----------------------------
(Name of Existing Holder)
-----------------------------
(Name of Broker-Dealer)
-----------------------------
(Name of Agent Member)
By:________________________
Printed Name:
Title:
EXHIBIT D
(NOTE: TO BE USED ONLY FOR FAILURES TO DELIVER OR TO PAY FOR PREFERRED
SHARES SOLD PURSUANT TO AN AUCTION)
NOTICE OF A FAILURE TO DELIVER
We are a Broker-Dealer for ___________________ (the "Purchaser"),
which purchased ____ Series M28 Preferred Shares of Evergreen Utilities and
High Income Fund in the Auction held on _____________ from the Seller of
such shares.
We hereby notify you that (check one):
__ the Seller failed to deliver such shares to the Purchaser.
__ the Purchaser failed to make payment to the Seller upon
delivery of such shares.
Name:_______________________
(Name of Broker-Dealer)
By:__________________________
Printed Name:
Title: