FORM OF INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
AGREEMENT made as of the ___ day of ______ 2004, by and between EVERGREEN
UTILITIES AND HIGH INCOME FUND, a Delaware statutory trust (the "Trust") and
EVERGREEN INVESTMENT MANAGEMENT COMPANY, LLC, a Delaware limited liability
company, (the "Adviser").
WHEREAS, the Trust and the Adviser wish to enter into an Agreement setting
forth the terms on which the Adviser will perform certain services for the
Trust.
THEREFORE, in consideration of the promises and the mutual agreements
hereinafter contained, the Trust and the Adviser agree as follows:
1. The Trust hereby employs the Adviser to manage the investment and
reinvestment of the assets of the Trust in conformity with the Trust's
investment objectives and restrictions as may be set forth in the Trust's
prospectus and statement of additional information, or as in effect from time to
time, all subject to the supervision of the Board of Trustees of the Trust, for
the period and on the terms set forth in this Agreement. The Adviser hereby
accepts such appointment and agrees during such period, at its own expense, to
render the services and to assume the obligations set forth herein, for the
compensation provided herein. The Adviser shall for all purposes herein be
deemed to be an independent contractor and shall, unless otherwise expressly
provided or authorized, have no authority to act for or represent the Trust in
any way or otherwise be deemed an agent of the Trust.
2. The Adviser shall place all orders for the purchase and sale of
portfolio securities for the account of the Trust with broker-dealers selected
by the Adviser. In executing portfolio transactions and selecting
broker-dealers, the Adviser will use its best efforts to seek best execution on
behalf of the Trust. In assessing the best execution available for any
transaction, the Adviser shall consider all factors it deems relevant, including
the breadth of the market in the security, the price of the security, the
financial condition and execution capability of the broker-dealer, and the
reasonableness of the commission, if any (all for the specific transaction and
on a continuing basis). In evaluating the best execution available, and in
selecting the broker-dealer to execute a particular transaction, the Adviser may
also consider the brokerage and research services (as those terms are used in
Section 28(e) of the Securities Exchange Act of 1934 (the "1934 Act")) provided
to the Trust and/or other accounts over which the Adviser or an affiliate of the
Adviser exercises investment discretion. The Adviser is authorized to pay a
broker-dealer who provides such brokerage and research services a commission for
executing a portfolio transaction for the Trust which is in excess of the amount
of commission another broker-dealer would have charged for effecting that
transaction if, but only if, the Adviser determines in good faith that such
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker-dealer viewed in terms of that particular
transaction or in terms of all of the accounts over which investment discretion
is so exercised.
3. The Adviser, at its own expense, shall furnish to the Trust office space
in the offices of the Adviser or in such other place as may be agreed upon by
the parties from time to time, all necessary office facilities, equipment and
personnel in connection with its services hereunder, and shall arrange, if
desired by the Trust, for members of the Adviser's organization to serve without
salaries from the Trust as officers or, as may be agreed from time to time, as
agents of the Trust. The Adviser assumes and shall pay or reimburse the Trust
for:
(a) the compensation (if any) of the Trustees of the Trust who are affiliated
with the Adviser or with its affiliates, or with any adviser retained by
the Adviser, and of all officers of the Trust as such; and
(b) all expenses of the Adviser incurred in connection with its services
hereunder.
The Trust assumes and shall pay all other expenses of the Trust, including,
without limitation:
(a) all charges and expenses of any custodian or depository appointed by the
Trust for the safekeeping of the cash, securities and other property of the
Trust;
(b) all charges and expenses for bookkeeping and auditors;
(c) all charges and expenses of any transfer agents and registrars appointed by
the Trust;
(d) all fees of all Trustees of the Trust who are not affiliated with the
Adviser or any of its affiliates, or with any adviser retained by the
Adviser;
(e) all brokers' fees, expenses, and commissions and issue and transfer taxes
chargeable to the Trust in connection with transactions involving
securities and other property to which the Trust is a party;
(f) all stock exchange listing expenses;
(g) all taxes and trust fees payable by the Trust to Federal, state, or other
governmental agencies;
(h) all costs of certificates representing shares of the Trust;
(i) all fees and expenses involved in registering and maintaining registrations
of the Trust with the Securities and Exchange Commission (the "Commission")
and registering or qualifying the Trust's shares under state or other
securities laws, including, without limitation, the preparation and
printing of registration statements, prospectuses, and statements of
additional information for filing with the Commission and other
authorities;
(j) expenses of preparing, printing, and mailing prospectuses and statements of
additional information to shareholders of the Trust;
(k) all expenses of shareholders' and Trustees' meetings and of preparing,
printing, and mailing notices, reports, and proxy materials to shareholders
of the Trust;
(l) all charges and expenses of legal counsel for the Trust and for Trustees of
the Trust in connection with legal matters relating to the Trust,
including, without limitation, legal services rendered in connection with
the Trust's existence, trust, and financial structure and relations with
its shareholders, registrations and qualifications of securities under
Federal, state, and other laws, issues of securities, expenses which the
Trust have herein assumed, whether customary or not, and extraordinary
matters, including, without limitation, any litigation involving the Trust,
its Trustees, officers, employees, or agents;
(m) all charges and expenses of filing annual and other reports with the
Commission and other authorities; and
(n) all extraordinary expenses and charges of the Trust .
In the event that the Adviser provides any of these services or pays any of
these expenses, the Trust will promptly reimburse the Adviser therefor.
The services of the Adviser to the Trust hereunder are not to be deemed
exclusive, and the Adviser shall be free to render similar services to others.
4. As compensation for the Adviser's services to the Trust during the
period of this Agreement, the Trust will pay to the Adviser a fee at the annual
rate of 0.60% of its total assets (defined as net assets of the Trust plus
borrowings or other leverage for investment purposes to the extent excluded in
calculating net assets).
The Adviser's fee is computed as of the close of business on each business
day.
A pro rata portion of the Trust's fee shall be payable in arrears at the
end of each day or calendar month as the Adviser may from time to time specify
to the Trust. If and when this Agreement terminates, any compensation payable
hereunder for the period ending with the date of such termination shall be
payable upon such termination. Amounts payable hereunder shall be promptly paid
when due.
5. The Adviser may enter into an agreement to retain, at its own expense, a
firm or firms ("SubAdviser") to provide the Trust all of the services to be
provided by the Adviser hereunder, if such agreement is approved as required by
law. Such agreement may delegate to such SubAdviser all of Adviser's rights,
obligations, and duties hereunder.
6. The Adviser shall not be liable for any error of judgment or mistake of
law or for any loss suffered by the Trust in connection with the performance of
this Agreement, except a loss resulting from the Adviser's willful misfeasance,
bad faith, gross negligence, or from reckless disregard by it of its obligations
and duties under this Agreement. Any person, even though also an officer,
Director, partner, employee, or agent of the Adviser, who may be or become an
officer, Trustee, employee, or agent of the Trust, shall be deemed, when
rendering services to the Trust or acting on any business of the Trust (other
than services or business in connection with the Adviser's duties hereunder), to
be rendering such services to or acting solely for the Trust and not as an
officer, Director, partner, employee, or agent or one under the control or
direction of the Adviser even though paid by it.
7. The Trust shall cause the books and accounts to be audited at least once
each year by a reputable independent public accountant or organization of public
accountant or organization of public accountants who shall render a report to
the Trust.
8. Subject to and in accordance with the Declaration of Trust of the Trust,
the governing documents of the Adviser and the governing documents of any
SubAdviser, it is understood that Trustees, Directors, officers, agents and
shareholders of the Trust or any Adviser are or may be interested in the Adviser
(or any successor thereof) as Directors and officers of the Adviser or its
affiliates, as stockholders of Wachovia Corporation or otherwise; that
Directors, officers and agents of the Adviser and its affiliates or stockholders
of Wachovia Corporation are or may be interested in the Trust or any Adviser as
Trustees, Directors, officers, shareholders or otherwise; that the Adviser (or
any such successor) is or may be interested in the Trust or any SubAdviser as
shareholder, or otherwise; and that the effect of any such adverse interests
shall be governed by the Declaration of Trust of the Trust, governing documents
of the Adviser and governing documents of any SubAdviser.
9. This Agreement shall continue in effect for two years from the date set
forth above and after such date (a) such continuance is specifically approved at
least annually by the Board of Trustees of the Trust or by a vote of a majority
of the outstanding voting securities of the Trust, and (b) such renewal has been
approved by the vote of the majority of Trustees of the Trust who are not
interested persons, as that term is defined in the 1940 Act, of the Adviser or
of the Trust, cast in person at a meeting called for the purpose of voting on
such approval.
10. On sixty days' written notice to the Adviser, this Agreement may be
terminated at any time without the payment of any penalty by the Board of
Trustees of the Trust or by vote of the holders of a majority of the outstanding
voting securities of the Trust; and on sixty days' written notice to the Trust,
this Agreement may be terminated at any time without the payment of any penalty
by the Adviser. This Agreement shall automatically terminate upon its assignment
(as that term is defined in the 1940 Act). Any notice under this Agreement shall
be given in writing, addressed and delivered, or mailed postage prepaid, to the
other party at the main office of such party.
11. This Agreement may be amended at any time by an instrument in writing
executed by both parties hereto or their respective successors, provided that
with regard to amendments of substance such execution by the Trust shall have
been first approved by the vote of the holders of a majority of the outstanding
voting securities of the Trust and by the vote of a majority of Trustees of the
Trust who are not interested persons (as that term is defined in the 0000 Xxx)
of the Adviser, any predecessor of the Adviser, or of the Trust, cast in person
at a meeting called for the purpose of voting on such approval. A "majority of
the outstanding voting securities" of the Trust or the affected Funds shall
have, for all purposes of this Agreement, the meaning provided therefor in the
1940 Act.
12. Any compensation payable to the Adviser hereunder for any period other
than a full year shall be proportionately adjusted.
13. The provisions of this Agreement shall be governed, construed, and
enforced in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
EVERGREEN UTILITIES AND HIGH INCOME FUND
By: __________________________
Name: Xxxxxxxxx X. Xxxxxxx
Title: Assistant Secretary
EVERGREEN INVESTMENT
MANAGEMENT COMPANY, LLC
By: __________________________
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
