FORM OF STRUCTURING FEE AGREEMENT
October [o], 2005
Wachovia Capital Markets, LLC
[o]
Ladies and Gentlemen:
Reference is made to the Purchase Agreement dated October [o], 2005 (the
"Purchase Agreement"), by and among Evergreen International Balanced Income Fund
(the "Fund"), Evergreen Investment Management Company, LLC (the "Investment
Adviser"), First International Advisors, LLC, d/b/a Evergreen International
Advisors, Analytic Investors, Inc. and each of the Underwriters named therein,
with respect to the issue and sale of the Fund's common shares of beneficial
interest (the "Common Shares"), as described therein. Capitalized terms used
herein and not otherwise defined shall have the meanings given to them in the
Purchase Agreement.
1. Fee. In consideration of your services in offering advice relating to
the structure and design of the Fund and the organization of the Fund as well as
services related to the sale and distribution of the Fund's Common Shares, the
Investment Adviser shall pay a fee to you in the aggregate amount of $[o] (the
"Fee"), which is [o]% of the total initial price to the public of the Common
Shares offering hereby. The Fee shall be paid on or before [o], 2005, and shall
be made by wire transfer to the order of Wachovia Capital Markets, LLC.
2. Term. This Agreement shall terminate upon the payment of the entire
amount of the Fee, as specified in Section 1 hereof.
3. Indemnification. The Investment Adviser agrees to the indemnification
and other agreements set forth in the Indemnification Agreement attached hereto,
the provisions of which are incorporated herein by reference and shall survive
the termination, expiration or supersession of this Agreement.
4. Not an Investment Adviser. The Investment Adviser acknowledges that you
are not providing any advice hereunder as to the value of securities or
regarding the advisability of purchasing or selling any securities for the
Fund's portfolio. No provision of this Agreement shall be considered as
creating, nor shall any provision create, any obligation on the part of you, and
you are not agreeing hereby, to: (i) furnish any advice or make any
recommendations regarding the purchase or sale of portfolio securities; or (ii)
render any opinions, valuations or recommendations of any kind or to perform any
such similar services.
5. Not Exclusive. Nothing herein shall be construed as prohibiting you or
your affiliates from acting as an underwriter or financial advisor or in any
other capacity for any other persons (including other registered investment
companies or other investment advisers).
6. Assignment. This Agreement may not be assigned by any party without
prior written consent of the other party.
7. Amendment; Waiver. No provision of this Agreement may be amended or
waived except by an instrument in writing signed by the parties hereto.
8. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which, when taken
together, shall constitute one agreement. Delivery of an executed signature page
of this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof.
This Agreement shall be effective as of the date first written above.
[END OF TEXT]
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EVERGREEN INVESTMENT MANAGEMENT
COMPANY, LLC
By: __________________________________
Name:
Title:
Agreed and Accepted:
WACHOVIA CAPITAL MARKETS, LLC
By: ________________________________
Name:
Title:
Indemnification Agreement
October [o], 2005
Wachovia Capital Markets, LLC
[o]
Ladies and Gentlemen:
In connection with the engagement of Wachovia Capital Markets, LLC
("Wachovia") to advise and assist the undersigned (together with its affiliates
and subsidiaries, referred to as the "Company") with the matters set forth in
the Structuring Fee Agreement dated October [o], 2005 between the Company and
Wachovia (the "Agreement"), in the event that Wachovia becomes involved in any
capacity in any claim, suit, action, proceeding, investigation or inquiry
(including, without limitation, any shareholder or derivative action or
arbitration proceeding) (collectively, a "Proceeding") with respect to the
services performed pursuant to and in accordance with the Agreement, the Company
agrees to indemnify, defend and hold Wachovia harmless to the fullest extent
permitted by law, from and against any losses, claims, damages, liabilities and
expenses with respect to the services performed pursuant to and in accordance
with the Agreement, except to the extent that it shall be determined by a court
of competent jurisdiction in a judgment that has become final in that it is no
longer subject to appeal or other review, that such losses, claims, damages,
liabilities and expenses resulted primarily from the gross negligence or willful
misconduct of Wachovia. In addition, in the event that Xxxxxxxx becomes involved
in any capacity in any Proceeding with respect to the services performed
pursuant to and in accordance with the Agreement, the Company will reimburse
Wachovia for its legal and other expenses (including the cost of any
investigation and preparation) as such expenses are incurred by Wachovia in
connection therewith. If such indemnification were not to be available for any
reason, the Company agrees to contribute to the losses, claims, damages,
liabilities and expenses involved (i) in the proportion appropriate to reflect
the relative benefits received or sought to be received by the Company and its
shareholders and affiliates and other constituencies, on the one hand, and
Wachovia, on the other hand, in the matters contemplated by the Agreement or
(ii) if (but only if and to the extent) the allocation provided for in clause
(i) is for any reason held unenforceable, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company and its shareholders and affiliates and other
constituencies, on the one hand, and the party entitled to contribution, on the
other hand, as well as any other relevant equitable considerations. The Company
agrees that for the purposes of this paragraph the relative benefits received,
or sought to be received, by the Company and its shareholders and affiliates, on
the one hand, and the party entitled to contribution, on the other hand, of a
transaction as contemplated shall be deemed to be in the same proportion that
the total value received or paid or contemplated to be received or paid by the
Company or its shareholders or affiliates and other constituencies, as the case
may be, as a result of or in connection with the transaction (whether or not
consummated) for which Xxxxxxxx has been retained to perform financial services
bears to the fees paid to Wachovia under the Agreement; provided, that in no
event shall the Company contribute less than the amount necessary to assure that
Wachovia is not liable for losses, claims, damages, liabilities and expenses in
excess of the amount of fees actually received by Wachovia pursuant to the
Agreement. Relative fault shall be determined by reference to, among other
things, whether any alleged untrue statement or omission or any other alleged
conduct relates to information provided by the Company or other conduct by the
Company (or its employees or other agents), on the one hand, or by Xxxxxxxx, on
the other hand. The Company will not settle any Proceeding in respect of which
indemnity may be sought hereunder, whether or not Xxxxxxxx is an actual or
potential party to such Proceeding,
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without Xxxxxxxx's prior written consent. For purposes of this Indemnification
Agreement, Wachovia shall include Wachovia, any of its affiliates, each other
person, if any, controlling Wachovia or any of its affiliates, their respective
officers, current and former directors, employees and agents, and the successors
and assigns of all of the foregoing persons. The foregoing indemnity and
contribution agreement shall be in addition to any rights that any indemnified
party may have at common law or otherwise.
The Company agrees that neither Wachovia nor any of its affiliates,
directors, agents, employees or controlling persons shall have any liability to
the Company or any person asserting claims on behalf of or in right of the
Company with respect to the services performed pursuant to and in accordance
with the Agreement, except to the extent that it shall be determined by a court
of competent jurisdiction in a judgment that has become final in that it is no
longer subject to appeal or other review that any losses, claims, damages,
liabilities or expenses incurred by the Company resulted primarily from the
gross negligence or willful misconduct of Wachovia in performing the services
that are the subject of the Agreement.
THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF
ANY KIND OR NATURE WHATSOEVER WITH RESPECT TO THE SERVICES PERFORMED PURSUANT TO
AND IN ACCORDANCE WITH THE AGREEMENT ("CLAIM"), DIRECTLY OR INDIRECTLY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN
ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND
COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE
ADJUDICATION OF SUCH MATTERS, AND THE COMPANY AND WACHOVIA CONSENT TO THE
JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE
COMPANY HEREBY CONSENTS TO PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT
IN WHICH ANY CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS
BROUGHT BY ANY THIRD PARTY AGAINST WACHOVIA OR ANY INDEMNIFIED PARTY. EACH OF
WACHOVIA AND THE COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR
CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY
WAY RELATING TO THIS AGREEMENT. THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY
PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT
BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE COMPANY AND
MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE COMPANY IS
OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT.
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The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of Wachovia's engagement. This
Indemnification Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same agreement.
Very truly yours,
EVERGREEN INVESTMENT MANAGEMENT
COMPANY, LLC
By: __________________________________
Name:
Title:
Accepted and agreed to as of
the date first above written:
WACHOVIA CAPITAL MARKETS, LLC
By: __________________________________
Name:
Title:
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