EXHIBIT H
Xxxx Xxxxxxx Tax-Advantaged Dividend Income Fund
Auction Preferred Shares
No Par Value
UNDERWRITING AGREEMENT
April 28, 2004
UNDERWRITING AGREEMENT
April 28, 2004
UBS Securities LLC
as Managing Representative
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxx Xxxxxxx Tax-Advantaged Dividend Income Fund, a voluntary
association with transferable shares organized and existing under and by virtue
of the laws of The Commonwealth of Massachusetts (commonly referred to as a
Massachusetts business trust) (the "Fund"), proposes to issue and sell to the
underwriters named in Schedule A annexed hereto (the "Underwriters") an
aggregate of 3,800 preferred shares of beneficial interest of the Fund, no par
value, designated Series M Auction Preferred Shares of the Fund, 3,800 preferred
shares of beneficial interest of the Fund, no par value, designated Series W
Auction Preferred Shares of the Fund, 3,800 preferred shares of beneficial
interest of the Fund, no par value, designated Series TH Auction Preferred
Shares of the Fund, and 3,800 preferred shares of beneficial interest of the
Fund, no par value, designated Series F Auction Preferred Shares of the Fund,
each with a liquidation preference of $25,000 per share (the "Shares"). The
Shares are described in the Prospectus, which is referred to below.
The Fund has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Act"), and with the provisions of the Investment
Company Act of 1940, as amended, and the rules and regulations thereunder
(collectively called the "Investment Company Act"), with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form N-2
(File Nos. 333-113675 and 811-21416), including a prospectus and a statement of
additional information, relating to the Shares. The Fund has furnished to you,
for use by the Underwriters and by dealers, copies of one or more preliminary
prospectuses (including a preliminary statement of additional information) (each
thereof, including such preliminary statement of additional information, being
herein called a "Preliminary Prospectus") relating to the Shares. Except where
the context otherwise requires, the Registration Statement, as amended when it
becomes effective (the "Effective Date"), including all documents filed as a
part thereof or incorporated by reference therein, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 497 under the Act and deemed to be part of the Registration Statement at
the time of effectiveness pursuant to Rule 430A under the Act is herein called
the Registration Statement, and the prospectus (including the statement of
additional information), in the form filed by the Fund with the Commission
pursuant to Rule 497 under the Act or, if no such filing is required, the form
of final prospectus (including the form of final statement of additional
information) included in
the "Registration Statement" at the time it became effective, is herein called
the "Prospectus." In addition, the Fund has filed a Notification of Registration
on Form N-8A (the "Notification") pursuant to Section 8 of the Investment
Company Act.
Xxxx Xxxxxxx Advisers, LLC ("Xxxx Xxxxxxx Advisers" or the
"Investment Adviser") acts as the Fund's investment adviser pursuant to an
Investment Advisory Agreement by and between the Fund and the Investment
Adviser, dated as of February 27, 2004 (the "Investment Advisory Agreement").
The Bank of New York acts as the custodian (the "Custodian") of the Fund's cash
and portfolio assets pursuant to a Custody Agreement, dated as of February 27,
2004 (the "Custody Agreement"). Mellon Investor Services LLC acts as the Fund's
transfer agent, registrar and dividend disbursing agent with respect to the
common shares of the Fund (the "Transfer Agent") pursuant to a transfer agency
agreement, dated as of February 27, 2004 (the "Transfer Agency Agreement").
Deutsche Bank Trust Company Americas will act as the Fund's auction agent (the
"Auction Agent") for the Shares pursuant to an Auction Agency Agreement, dated
as of April 30, 2004 (the "Auction Agency Agreement"). The Fund has entered into
a Letter Agreement, dated as of April 28, 2004, with the Depository Trust
Company (the "DTC Agreement"). The Investment Adviser and UBS Securities LLC
(the "Managing Representative") have entered into a Shareholder Servicing
Agreement, dated as of February 27, 2004 (the "Shareholder Servicing
Agreement"). The Investment Adviser has entered into a Lead Managing Underwriter
Additional Compensation Agreement with UBS Securities LLC, dated as of February
27, 2004; a Lead Managing Underwriter Additional Compensation Agreement with
Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, dated as of February 27,
2004; and a Qualifying Underwriter Additional Compensation Agreement with
Wachovia Capital Markets, LLC and X.X. Xxxxxxx & Sons, Inc., dated as of
February 27, 2004 (collectively, the "Additional Compensation Agreements").
The Fund, the Investment Adviser and the Underwriters agree as
follows:
1. SALE AND PURCHASE. Upon the basis of the warranties and representations
and subject to the terms and conditions herein set forth, the Fund agrees
to sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Fund the aggregate
number of Shares set forth opposite the name of such Underwriter in
Schedule A attached hereto in each case at a purchase price of $24,750 per
Share. The Fund is advised that the Underwriters intend (i) to make a
public offering of their respective portions of the Shares as soon after
the effective date of the Registration Statement as is advisable and (ii)
initially to offer the Shares upon the terms set forth in the Prospectus.
The Underwriters may from time to time increase or decrease the public
offering price after the initial public offering to such extent as they
may determine.
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Shares shall
be made by the Underwriters to the Fund by Federal Funds wire transfer,
against delivery of the certificates for the Shares to you through the
facilities of the Depository Trust Company ("DTC") for the respective
accounts of the
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Underwriters. Such payment and delivery shall be made at 10:00 A.M., New
York City time on the third business day following the date of this
Underwriting Agreement (unless another date or time shall be agreed to by
you and the Fund). The time at which such payment and delivery are
actually made is hereinafter sometimes called the "Time of Purchase" or
the "Closing Date."
A certificate in definitive form representing the Shares registered
in the name of Cede & Co., as nominee for DTC, shall be delivered by or on
behalf of the Fund to DTC for the account of the Underwriters. For the
purpose of expediting the checking of the certificates for the Shares by
you, the Fund agrees to make such certificates available to you for such
purpose at least one full business day preceding the Time of Purchase.
3. REPRESENTATIONS AND WARRANTIES OF THE FUND AND THE INVESTMENT ADVISER.
Each of the Fund and the Investment Adviser jointly and severally
represents and warrants to each Underwriter as follows:
(a) On (A) the Effective Date and the date on which the Prospectus is
first filed with the Commission pursuant to Rule 497(b), (h) or (j)
under the Act, as the case may be, (B) the date on which any
post-effective amendment to the Registration Statement (except any
post-effective amendment which is filed with the Commission after
the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is
completed) became or becomes effective or any amendment or
supplement to the Prospectus was or is filed with the Commission and
(C) the Closing Dates, the Registration Statement, the Prospectus
and any such amendment or supplement thereto and the Notification
complied or will comply in all material respects with the
requirements of the Act and the Investment Company Act, as the case
may be. On the Effective Date and on the date that any
post-effective amendment to the Registration Statement (except any
post-effective amendment which is filed with the Commission after
the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is
completed) became or becomes effective, neither the Registration
Statement nor any such amendment did or will contain any untrue
statement of a material fact or omit to state a material fact
required to be stated in it or necessary to make the statements in
it not misleading. At the Effective Date and, if applicable, the
date the Prospectus or any amendment or supplement to the Prospectus
was or is filed with the Commission and at the Closing Dates, the
Prospectus did not or will not, as the case may be, contain any
untrue statement of a material fact or omit to state a material fact
required to be stated in it or necessary to make the statements in
it, in light of the circumstances under which they were made, not
misleading. The foregoing representations in this Section 3(a) do
not apply to statements or omissions relating to the Underwriters
made in reliance on and in conformity with information furnished in
writing to the Fund by you expressly for use in the
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Registration Statement, the Prospectus, or any amendments or
supplements thereto, as described in Section 9(f) hereof.
(b) The Fund has been duly formed, is validly existing as a
Massachusetts business trust, with full power and authority to
conduct its business as described in the Registration Statement and
Prospectus, and the Fund is duly licensed and qualified to do
business and in good standing in each jurisdiction in which its
ownership or leasing of property or its conducting of business
requires such qualification, except where the failure to be so
licensed and qualified, either alone or in the aggregate, would not
result in a Material Adverse Effect (as defined below in Section
3(m)) and the Fund owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations, whether foreign or domestic,
necessary to carry on its business as contemplated in the
Prospectus, except such licenses, permits, consents, orders,
approvals and other authorizations of the Fund to obtain, either
alone or in the aggregate, would not result in a Material Adverse
Effect (as defined below in Section 3(m)). The Fund has no
subsidiaries.
(c) The capitalization of the Fund is as set forth in the Registration
Statement and the Prospectus. The common shares of beneficial
interest of the Fund (the "Common Shares") and the Shares conform to
the description of them in the Prospectus. All the outstanding
Common Shares have been duly authorized and are validly issued,
fully paid and, except to the extent set forth in the Prospectus,
nonassessable. The Shares to be issued and delivered to and paid for
by the Underwriters in accordance with this Underwriting Agreement
against payment therefor as provided by this Underwriting Agreement
have been duly authorized and when issued and delivered to the
Underwriters will have been validly issued and will be fully paid
and, except to the extent set forth in the Prospectus,
nonassessable. No person is entitled to any preemptive or other
similar rights with respect to the Shares.
(d) The Fund is duly registered with the Commission under the Investment
Company Act as a diversified, closed-end management investment
company, and, subject to the filing of a final amendment to the
Registration Statement, or any required filing under Rule 430A or
Rule 497 under the Act (the "Final Amendment"), if not already
filed, all action under the Act and the Investment Company Act, as
the case may be, necessary under the federal securities laws on the
part of the Fund to make the public offering and consummate the sale
of the Shares as provided in this Underwriting Agreement has or will
have been taken by the Fund.
(e) The Fund has full power and authority to enter into each of this
Underwriting Agreement, the Investment Advisory Agreement, the
Custody Agreement, the Transfer Agency Agreement, the Auction Agency
Agreement and the DTC Agreement (collectively, the "Fund
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Agreements") and to perform all of the terms and provisions hereof
and thereof to be carried out by it and (i) each Fund Agreement has
been duly and validly authorized, executed and delivered by or on
behalf of the Fund, (ii) each Fund Agreement does not violate in any
material respect any of the applicable provisions of the Investment
Company Act or the Investment Advisers Act of 1940, as amended, and
the rules and regulations thereunder (collectively called the
"Advisers Act"), as the case may be, and (iii) assuming due
authorization, execution and delivery by the other parties thereto,
each Fund Agreement constitutes the legal, valid and binding
obligation of the Fund enforceable in accordance with its terms, (A)
subject, as to enforcement, to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general
equitable principles (regardless of whether enforcement is sought in
a proceeding in equity or at law) and (B) except as rights to
indemnity thereunder may be limited by federal or state securities
laws.
(f) None of (i) the execution and delivery by the Fund of the Fund
Agreements, (ii) the issue and sale by the Fund of the Shares as
contemplated by this Underwriting Agreement and (iii) the
performance by the Fund of its obligations under any of the Fund
Agreements or consummation by the Fund of the other transactions
contemplated by the Fund Agreements conflicts with or will conflict
with, or results or will result in a breach of, the Declaration of
Trust of the Fund, as amended through the date hereof (the
"Declaration of Trust"), the Amended and Restated Bylaws of the
Fund, adopted in connection with the issuance of the Shares and as
amended through the date hereof (the "Amended Bylaws") or any
agreement or instrument to which the Fund is a party or by which the
Fund is bound, or any law, rule or regulation, or order of any
court, governmental instrumentality, securities exchange or
association or arbitrator, whether foreign or domestic, applicable
to the Fund, other than state securities or "blue sky" laws
applicable in connection with the purchase and distribution of the
Shares by the Underwriters pursuant to this Underwriting Agreement.
(g) The Fund is not currently in breach of, or in default under, any
written agreement or instrument to which it is a party or by which
it or its property is bound or affected, except for such breaches or
defaults that do not, either alone or in the aggregate, have a
Material Adverse Effect (as defined below in Section 3(m)).
(h) No person has any right to the registration of any securities of the
Fund because of the filing of the Registration Statement.
(i) No consent, approval, authorization or order of any court or
governmental agency or body or securities exchange or association,
whether foreign or domestic, is required to be obtained by the Fund
prior to the Closing Date for the consummation by the Fund of the
transactions to be performed by
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the Fund or the performance by the Fund of all the terms and
provisions to be performed by or on behalf of it in each case as
contemplated in the Fund Agreements, except such as (i) have been
obtained under the Act, the Investment Company Act or the Advisers
Act, and (ii) may be required under state securities or "blue sky"
laws, in connection with the purchase and distribution of the Shares
by the Underwriters pursuant to this Underwriting Agreement.
(j) Deloitte & Touche LLP, whose report appears in the Prospectus, are
independent public accountants with respect to the Fund as required
by the Act and the Investment Company Act.
(k) The statement of assets and liabilities included in the Registration
Statement and the Prospectus presents fairly in all material
respects, in accordance with generally accepted accounting
principles in the United States applied on a consistent basis, the
financial position of the Fund as of the date indicated.
(l) The Fund will maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets
through an asset reconciliation procedure or otherwise at reasonable
intervals and appropriate action is taken with respect to any
differences.
(m) Since the date as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein,
(i) there has been no material adverse change in the condition,
financial or otherwise, business affairs or business of the Fund,
whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (ii) there have been no transactions
entered into by the Fund other than those in the ordinary course of
its business and (iii) there has been no dividend or distribution of
any kind declared, paid or made on any class of its capital shares.
(n) There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending, or,
to the knowledge of the Fund, threatened against or affecting the
Fund, which (i) might result in any material adverse change in the
condition, financial or otherwise, business affairs or business
prospects of the Fund or might materially adversely affect the
properties or assets of the Fund or (ii) is of a character required
to be described in the Registration Statement or the Prospectus; and
there
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are no contracts, franchises or other documents that are of a
character required to be described in, or that are required to be
filed as exhibits to, the Registration Statement that have not been
described or filed as required.
(o) The Fund intends to direct the investment of the proceeds of the
offering of the Shares in such a manner as to comply with the
requirements of Subchapter M of the Internal Revenue Code of 1986,
as amended (the "Code").
(p) The Common Shares are listed on the New York Stock Exchange.
(q) The Shares have been, or prior to the Closing Date will be, assigned
a rating of "Aaa" by Xxxxx'x Investors Service, Inc.
(r) No advertising, sales literature or other promotional materials
(excluding road show slides or road show tapes) were authorized or
prepared by or on behalf of the Fund or the Investment Adviser or
any representative thereof for use in connection with the public
offering or sale of the Shares (collectively referred to as the
"sales materials"); any road show slides or road show tapes complied
and comply in all material respects with the applicable requirements
of the Act and the rules and interpretations of the NASD; and no
broker kits, road show slides, road show tapes or sales materials
authorized or prepared by the Fund or authorized or prepared on
behalf of the Fund by the Investment Adviser or any representative
thereof for use in connection with the public offering or sale of
the Shares contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTMENT ADVISER. The Investment
Adviser represents to each Underwriter as follows:
(a) The Investment Adviser has been duly formed, is validly existing as
a limited liability company under the laws of Delaware with full
power and authority to perform its obligations under this Agreement,
the Shareholder Servicing Agreement, the Investment Advisory
Agreement and the Additional Compensation Agreements, and the
Investment Adviser is duly licensed and qualified to do business and
in good standing in each jurisdiction in which it is required to be
so qualified in order to perform its obligations under this
Agreement, the Shareholder Servicing Agreement, the Investment
Advisory Agreement and the Additional Compensation Agreements; and
the Investment Adviser owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations, whether foreign or domestic,
necessary to perform its obligations under this Agreement, the
Shareholder
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Servicing Agreement, the Investment Advisory Agreement and the
Additional Compensation Agreements.
(b) The Investment Adviser is (i) registered as an investment adviser
under the Advisers Act and (ii) not prohibited by the Advisers Act
or the Investment Company Act from acting as the investment adviser
for the Fund as contemplated by the Investment Advisory Agreement,
the Registration Statement and the Prospectus.
(c) The Investment Adviser has, or at the relevant time had, full power
and authority to enter into each of this Underwriting Agreement, the
Shareholder Servicing Agreement, the Investment Advisory Agreement
and the Additional Compensation Agreements (collectively, this
Underwriting Agreement, the Shareholder Servicing Agreement, the
Investment Advisory Agreement and the Additional Compensation
Agreements being referred to as the "Investment Adviser Agreements")
and to carry out all the terms and provisions hereof and thereof to
be carried out by it; and each Investment Adviser Agreement has been
duly and validly authorized, executed and delivered by the
Investment Adviser; none of the Investment Adviser Agreements
violate any of the applicable provisions of the Investment Company
Act or the Advisers Act; and assuming due authorization, execution
and delivery by the other parties thereto, each Investment Adviser
Agreement constitutes a legal, valid and binding obligation of the
Investment Adviser, enforceable in accordance with its terms, (i)
subject, as to enforcement, to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general
equitable principles (regardless of whether enforcement is sought in
a proceeding in equity or at law) and (ii) except as rights to
indemnity thereunder may be limited by federal or state securities
laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of
any Investment Adviser Agreement nor (ii) the consummation by the
Investment Adviser of the transactions contemplated by, or the
performance of its obligations under any Investment Adviser
Agreement conflicts or will conflict with, or results or will result
in a breach of, the limited liability company agreement or other
organizational documents of the Investment Adviser or any agreement
or instrument to which the Investment Adviser is a party or by which
the Investment Adviser is bound, or any law, rule or regulation, or
order of any court, governmental instrumentality, securities
exchange or association or arbitrator, whether foreign or domestic,
applicable to the Investment Adviser, except in each case for such
conflicts or breaches which do not, either alone or in the
aggregate, have a material adverse effect upon the Investment
Adviser's ability to perform its obligations under the Investment
Adviser Agreements.
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(e) No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association,
whether foreign or domestic, is required to be obtained by the
Investment Adviser on or prior to the Closing Date for the
consummation of the transactions contemplated in, or the performance
by the Investment Adviser of its obligations under, any Investment
Adviser Agreement, as the case may be, except such as (i) have been
obtained under the Act, the Investment Company Act or the Advisers
Act, and (ii) may be required by the New York Stock Exchange or
under state securities or "blue sky" laws, in connection with the
purchase and distribution of the Shares by the Underwriters pursuant
to this Underwriting Agreement.
(f) The description of the Investment Adviser and its business, and the
statements attributable to the Investment Adviser, in the
Registration Statement and the Prospectus comply in all material
respects with the requirements of the Act and the Investment Company
Act and do not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading
(and, solely with respect to the Prospectus, in the light of the
circumstances under which they were made).
(g) There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending or, to
the knowledge of the Investment Adviser, threatened against or
affecting the Investment Adviser of a nature required to be
disclosed in the Registration Statement or Prospectus.
(h) The Investment Adviser has not made available any promotional
materials intended for use only by qualified broker-dealers and
registered representatives thereof by means of an Internet web site
or similar electronic means.
5. AGREEMENTS OF THE PARTIES.
(a) If the Registration Statement relating to the Shares has not yet
become effective, the Fund will promptly file the Final Amendment,
if not previously filed, with the Commission, and will use its best
efforts to cause such Registration Statement to become effective
and, as soon as the Fund is advised, will advise the Managing
Representative when the Registration Statement or any amendment
thereto has become effective. If the Registration Statement has
become effective and the Prospectus contained therein omits certain
information at the time of effectiveness pursuant to Rule 430A under
the Act, the Fund will file a 430A Prospectus pursuant to Rule
497(h) under the Act as promptly as practicable, but no later than
the second business day following the earlier of the date of the
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determination of the offering price of the Shares or the date the
Prospectus is first used after the Effective Date. If the
Registration Statement has become effective and the Prospectus
contained therein does not so omit such information, the Fund will
file a Prospectus pursuant to Rule 497(b) or (j) under the Act as
promptly as practicable, but no later than the fifth business day
following the date of the later of the Effective Date or the
commencement of the public offering of the Shares after the
Effective Date. In either case, the Fund will provide you
satisfactory evidence of the filing. The Fund will not file with the
Commission any Prospectus or any other amendment (except any
post-effective amendment which is filed with the Commission after
the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which distribution of the Shares is
completed) or supplement to the Registration Statement or the
Prospectus unless a copy has first been submitted to the Managing
Representative a reasonable time before its filing and the Managing
Representative has not objected to it in writing within a reasonable
time after receiving the copy.
(b) For the period of three years from the date hereof, the Fund will
advise the Managing Representative promptly (1) of the issuance by
the Commission of any order in respect of the Fund or the Investment
Adviser or which relates to the offering of the Shares, (2) of the
initiation or threatening of any proceedings for, or receipt by the
Fund of any notice with respect to, the suspension of the
qualification of the Shares for sale in any jurisdiction or the
issuance of any order by the Commission suspending the effectiveness
of the Registration Statement, (3) of receipt by the Fund, or any
representative or attorney of the Fund, of any other communication
from the Commission relating to the offering of the Shares, the
Registration Statement, the Notification, any Preliminary
Prospectus, the Prospectus or to the transactions contemplated by
this Underwriting Agreement and (4) the issuance by any court,
regulatory body, administrative agency or other governmental agency
or body, whether foreign or domestic, of any order, ruling or
decree, or the threat to initiate any proceedings with respect
thereto, regarding the offering of the Shares by the Fund. The Fund
will make every reasonable effort to prevent the issuance of any
order suspending the effectiveness of the Registration Statement
and, if any such order is issued, to obtain its lifting as soon as
possible.
(c) If not delivered prior to the date of this Underwriting Agreement,
the Fund will deliver to the Managing Representative, without
charge, a signed copy of the Registration Statement and the
Notification and of any amendments (except any post-effective
amendment which is filed with the Commission after the later of (x)
one year from the date of this Underwriting Agreement or (y) the
date on which the distribution of the Shares is completed) to either
the Registration Statement or the Notification (including all
exhibits filed with any such document) and as
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many conformed copies of the Registration Statement and any
amendments thereto (except any post-effective amendment which is
filed with the Commission after the later of (x) one year from the
date of this Underwriting Agreement or (y) the date on which the
distribution of the Shares is completed) (excluding exhibits) as the
Managing Representative may reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an underwriter or a dealer, the Fund will deliver,
without charge, to you, the Underwriters and any dealers, at such
office or offices as you may designate, as many copies of the
Prospectus as you may reasonably request, and, if any event occurs
during such period as a result of which it is necessary to amend or
supplement the Prospectus, in order to make the statements therein,
in light of the circumstances existing when such Prospectus is
delivered to a purchaser of Shares, not misleading in any material
respect, or if during such period it is necessary to amend or
supplement the Prospectus to comply with the Act or the Investment
Company Act, the Fund promptly will prepare, submit to the Managing
Representative, file with the Commission and deliver, without
charge, to the Underwriters and to dealers (whose names and
addresses the Managing Representative will furnish to the Fund) to
whom Shares may have been sold by the Underwriters, and to other
dealers on request, amendments or supplements to the Prospectus so
that the statements in such Prospectus, as so amended or
supplemented, will not, in light of the circumstances existing when
such Prospectus is delivered to a purchaser, be misleading in any
material respect and will comply with the Act and the Investment
Company Act. Delivery by the Underwriters of any such amendments or
supplements to the Prospectus will not constitute a waiver of any of
the conditions in Section 6 hereof.
(e) The Fund will make generally available to holders of the Fund's
securities, as soon as practicable but in no event later than the
last day of the 18th full calendar month following the calendar
quarter in which the Effective Date falls, an earnings statement, if
applicable, satisfying the provisions of Section 11(a) of the Act
and, at the option of the Fund, Rule 158 under the Act.
(f) The Fund will take such actions as the Managing Representative
reasonably requests in order to qualify the Shares for offer and
sale under the securities or "blue sky" laws of such jurisdictions
as the Managing Representative reasonably designates; provided that
the Fund shall not be required in connection therewith or as a
condition thereof to qualify as a foreign corporation or to execute
a general consent to service of process in any jurisdiction.
(g) The Fund will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Fund's counsel and accountants in
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connection with the registration of the Shares and all other
expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing or reproducing this Underwriting Agreement
and any other documents in connection with the offering, purchase,
sale and delivery of the Shares (including advertising expenses of
the Underwriters, if any); (iii) the cost of preparing share
certificates; (iv) the expenses (including, but not limited to,
travel, hotels and other accommodations) incurred by the Fund's
directors, officers, employees and other personnel in connection
with meetings held with registered brokers in connection with the
offering of the Shares, the preparing to market and the marketing of
the Shares; (v) any fees charged by securities rating services for
rating the Shares; (vi) the fees and expenses of the DTC and its
nominee, the Custodian and the Auction Agent; and (vii) all other
costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for. It is
understood, however, that, except as provided in this Section 5 and
Section 7 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel and stock transfer
taxes, if any, on resale of any of the Shares by them, except any
advertising expenses connected with any offers they may make.
(h) If the transactions contemplated by this Underwriting Agreement are
not consummated, except as otherwise provided herein, no party will
be under any liability to any other party, except that (i) if this
Underwriting Agreement is terminated by (A) the Fund or the
Investment Adviser pursuant to any of the provisions hereof
(otherwise than pursuant to Section 8 hereof) or (B) by you or the
Underwriters because of any inability, failure or refusal on the
part of the Fund or the Investment Adviser to comply with any
material terms or because any of the conditions in Section 6 are not
satisfied, Xxxx Xxxxxxx Advisers or an affiliate and the Fund,
jointly and severally, will reimburse the Underwriters for all
out-of-pocket expenses (including the reasonable fees, disbursements
and other charges of their counsel) reasonably incurred by them in
connection with the proposed purchase and sale of the Shares and
(ii) no Underwriter who has failed or refused to purchase the Shares
agreed to be purchased by it under this Underwriting Agreement, in
breach of its obligations pursuant to this Underwriting Agreement,
will be relieved of liability to the Fund and the Investment Adviser
and the other Underwriters for damages occasioned by its default.
(i) Without the prior written consent of the Managing Representative,
the Fund will not offer, sell or register with the Commission, or
announce an offering of, any equity securities of the Fund, within
180 days after the Effective Date, except for the Shares as
described in the Prospectus and
12
any issuances of Common Shares pursuant to the dividend reinvestment
plan established by the Fund.
(j) The Fund will direct the investment of the net proceeds of the
offering of the Shares in such a manner as to comply with the
investment objective and policies of the Fund as described in the
Prospectus.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase the Shares are subject to the accuracy on the
date of this Underwriting Agreement, and on the Closing Date, of the
representations of the Fund and the Investment Adviser in this
Underwriting Agreement, to the accuracy and completeness of all statements
made by the Fund, the Investment Adviser or any of their respective
officers in any certificate delivered to the Managing Representative or
its counsel pursuant to this Underwriting Agreement, to performance by the
Fund and the Investment Adviser of their respective obligations under this
Underwriting Agreement and to each of the following additional conditions:
(a) The Registration Statement must have become effective by 5:30 p.m.,
New York City time, on the date of this Underwriting Agreement or
such later date and time as the Managing Representative consents to
in writing. The Prospectus must have been filed in accordance with
Rule 497(b), (h) or (j), as the case may be, under the Act.
(b) No order suspending the effectiveness of the Registration Statement
may be in effect and no proceedings for such purpose may be pending
before or, to the knowledge of counsel to the Underwriters,
threatened by the Commission, and any requests for additional
information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) must be
complied with or waived to the reasonable satisfaction of the
Managing Representative.
(c) Since the dates as of which information is given in the Registration
Statement and the Prospectus, (i) there must not have been any
material adverse change in the number of outstanding Common Shares
or liabilities of the Fund except as set forth in or contemplated by
the Prospectus (provided that a change in the Fund's net asset
value, liabilities or portfolio securities arising in the course of
its normal investment operations shall not be deemed to be a
material adverse change); (ii) there must not have been any material
adverse change in the general affairs, prospects, management,
business, financial condition or results of operations of the Fund
or the Investment Adviser whether or not arising from transactions
in the ordinary course of business as set forth in or contemplated
by the Prospectus (provided that a change in the Fund's net asset
value, liabilities or portfolio securities arising in the course of
its normal investment operations shall not be deemed to be a
material adverse change); (iii) the Fund must not have sustained any
material interference with its business
13
from any court or from legislative or other governmental action,
order or decree, whether foreign or domestic, not described in the
Registration Statement and Prospectus; and (iv) there must not have
occurred any event that makes untrue or incorrect in any material
respect any statement or information contained in the Registration
Statement or Prospectus or that is not reflected in the Registration
Statement or Prospectus but should be reflected therein in order to
make the statements or information therein (in the case of the
Prospectus, in light of the circumstances in which they were made)
not misleading in any material respect; if, in the judgment of the
Managing Representative, any such development referred to in clause
(i), (ii), (iii) or (iv) of this paragraph (c) makes it
impracticable or inadvisable to consummate the sale and delivery of
the Shares pursuant to this Underwriting Agreement by the
Underwriters, at the initial public offering price of the Shares.
(d) The Managing Representative must have received on the Closing Date a
certificate, dated such date, of the President or a Vice-President
and the chief financial or accounting officer of each of the Fund
and the Investment Adviser certifying in their capacity as such
officers that (i) the signers have examined the Registration
Statement, the Prospectus, and this Underwriting Agreement, (ii) the
representations of the Fund (with respect to the certificates from
such Fund officers) and the representations of the Investment
Adviser (with respect to the certificates from such officers of the
Investment Adviser) in this Underwriting Agreement are accurate on
and as of the date of the certificate, (iii) there has not been any
material adverse change in the general affairs, prospects,
management, business, financial condition or results of operations
of the Fund (with respect to the certificates from such Fund
officers) or the Investment Adviser (with respect to the
certificates from such officers of the Investment Adviser), which
change would materially and adversely affect the ability of the Fund
or the Investment Adviser, as the case may be, to fulfill its
obligations under this Underwriting Agreement or the Investment
Advisory Agreement, whether or not arising from transactions in the
ordinary course of business, (iv) with respect to the Fund only, no
order suspending the effectiveness of the Registration Statement, or
prohibiting the sale of any of the Shares has been issued and no
proceedings for any such purpose are pending before or threatened by
the Commission or any other regulatory body, whether foreign or
domestic, (v) no order having a material adverse effect on the
ability of the Investment Adviser to fulfill its obligations under
this Underwriting Agreement, the Shareholder Servicing Agreement,
the Investment Advisory Agreement or the Additional Compensation
Agreements, as the case may be, has been issued and no proceedings
for any such purpose are pending before or threatened by the
Commission or any other regulatory body, whether foreign or
domestic, and (vi) each of the Fund (with respect to the
certificates from such Fund officers) and the Investment Adviser
(with respect to the certificates from such officers of the
Investment Adviser)
14
has performed all of its respective agreements that this
Underwriting Agreement requires it to perform by the Closing Date
(to the extent not waived in writing by the Managing
Representative).
(e) You must receive on the Closing Date the opinions dated such Closing
Date substantially in the form of Schedules B and C to this
Underwriting Agreement from the counsel identified in each such
Schedules.
(f) You must receive on the Closing Date from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP an opinion dated the Closing Date with respect to
the Fund, the Shares, the Registration Statement and the Prospectus,
this Underwriting Agreement and the form and sufficiency of all
proceedings taken in connection with the sale and delivery of the
Shares. Such opinion and proceedings shall fulfill the requirements
of this Section 6(f) only if such opinion and proceedings are
satisfactory in all respects to the Managing Representative. The
Fund and the Investment Adviser must have furnished to such counsel
such documents as counsel may reasonably request for the purpose of
enabling them to render such opinion.
(g) The Managing Representative must receive on the date this
Underwriting Agreement is signed and delivered by you a signed
letter, dated such date, substantially in the form of Schedule D to
this Underwriting Agreement from the firm of accountants designated
in such Schedule. The Managing Representative also must receive on
the Closing Date a signed letter from such accountants, dated as of
the Closing Date, confirming on the basis of a review in accordance
with the procedures set forth in their earlier letter that nothing
has come to their attention during the period from a date not more
than five business days before the date of this Underwriting
Agreement, specified in the letter, to a date not more than five
business days before the Closing Date, that would require any change
in their letter referred to in the foregoing sentence.
(h) The Shares shall have been accorded a rating of "Aaa" by Xxxxx'x
Investors Service, Inc. and a letter to such effect, dated on or
before the Closing Date, shall have been delivered to the Managing
Representative.
(i) As of the Closing Date, and assuming the receipt of the net proceeds
from the sale of the Shares, the 1940 Act Fund Preferred Shares
Asset Coverage and the Fund Preferred Shares Basic Maintenance
Amount (each as defined in the Prospectus) each will be met.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Underwriting Agreement will comply only if they are in
form and scope reasonably satisfactory to counsel for the Underwriters,
provided that any such documents, forms of which are annexed hereto, shall
be deemed satisfactory to such counsel if substantially in such form.
15
7. TERMINATION. This Underwriting Agreement may be terminated by the
Managing Representative by notifying the Fund at any time:
(a) before the later of the effectiveness of the Registration
Statement and the time when any of the Shares are first
generally offered pursuant to this Underwriting Agreement by
the Managing Representative to dealers by letter or telegram;
(b) at or before the Closing Date if, in the sole judgment of the
Managing Representative, payment for and delivery of any
Shares is rendered impracticable or inadvisable because (i)
trading in the equity securities of the Fund is suspended by
the Commission or by the principal exchange that lists the
Common Shares, (ii) trading in securities generally on the New
York Stock Exchange or the Nasdaq Stock Market shall have been
suspended or limited or minimum or maximum prices shall have
been generally established on such exchange or
over-the-counter market, (iii) additional material
governmental restrictions, not in force on the date of this
Underwriting Agreement, have been imposed upon trading in
securities or trading has been suspended on any U.S.
securities exchange, (iv) a general banking moratorium has
been established by U.S. federal or New York authorities or
(v) any material adverse change in the financial or securities
markets in the United States or in political, financial or
economic conditions in the United States or any outbreak or
material escalation of hostilities or declaration by the
United States of a national emergency or war or other calamity
or crisis shall have occurred the effect of any of which is
such as to make it, in the sole judgment of the Managing
Representative, impracticable or inadvisable to market the
Shares on the terms and in the manner contemplated by the
Prospectus; or
(c) at or before the Closing Date, if any of the conditions
specified in Section 6 have not been fulfilled when and as
required by this Underwriting Agreement.
8. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters fails
(other than for a reason sufficient to justify the termination of this
Underwriting Agreement) to purchase on the Closing Date the Shares
agreed to be purchased on the Closing Date by such Underwriter or
Underwriters, the Managing Representative may find one or more
substitute underwriters to purchase such Shares or make such other
arrangements as the Managing Representative deems advisable, or one or
more of the remaining Underwriters may agree to purchase such Shares in
such proportions as may be approved by the Managing Representative, in
each case upon the terms set forth in this Underwriting Agreement. If
no such arrangements have been made within 36 hours after the Closing
Date, and
(a) the number of Shares to be purchased by the defaulting
Underwriters on the Closing Date does not exceed 10% of the
Shares that the Underwriters
16
are obligated to purchase on such Closing Date, each of the
nondefaulting Underwriters will be obligated to purchase such
Shares on the terms set forth in this Underwriting Agreement
in proportion to their respective obligations under this
Underwriting Agreement, or
(b) the number of Shares to be purchased by the defaulting
Underwriters on the Closing Date exceeds 10% of the Shares to
be purchased by all the Underwriters on the Closing Date, the
Fund will be entitled to an additional period of 24 hours
within which to find one or more substitute underwriters
reasonably satisfactory to the Managing Representative to
purchase such Shares on the terms set forth in this
Underwriting Agreement.
In any such case, either the Managing Representative or the
Fund will have the right to postpone the Closing Date for not more than
five business days in order that necessary changes and arrangements
(including any necessary amendments or supplements to the Registration
Statement or the Prospectus) may be effected by the Managing
Representative and the Fund. If the number of Shares to be purchased on
the Closing Date by such defaulting Underwriter or Underwriters exceeds
10% of the Shares that the Underwriters are obligated to purchase on
the Closing Date, and none of the nondefaulting Underwriters or the
Fund makes arrangements pursuant to this Section within the period
stated for the purchase of the Shares that the defaulting Underwriters
agreed to purchase, this Underwriting Agreement will terminate without
liability on the part of any nondefaulting Underwriter, the Fund or the
Investment Adviser, except as provided in Sections 6(h) and 9 hereof.
This Section will not affect the liability of any defaulting
Underwriter to the Fund or the nondefaulting Underwriters arising out
of such default. A substitute underwriter will become a Underwriter for
all purposes of this Underwriting Agreement.
9. INDEMNITY AND CONTRIBUTION.
(a) Each of the Fund and the Investment Adviser, jointly and
severally, agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any
person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and
the successors and assigns of all of the foregoing persons
from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which,
jointly or severally, any such Underwriter or any such person
may incur under the Act, the Exchange Act, the Investment
Company Act, the Advisers Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Fund)
or in a Prospectus (the term "Prospectus" for the purpose of
this Section 9 being deemed to include any Preliminary
17
Prospectus, any sales materials prepared or authorized by the
Fund, the Prospectus and the Prospectus as amended or
supplemented by the Fund), or arises out of or is based upon
any omission or alleged omission to state a material fact
required to be stated in either such Registration Statement or
Prospectus or necessary to make the statements made therein
not misleading, except insofar as any such loss, damage,
expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material
fact contained in and in conformity with information furnished
in writing by or on behalf of any Underwriter through you to
the Fund or the Investment Adviser expressly for use with
reference to such Underwriter in such Registration Statement
or such Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in
connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make
such information not misleading, provided, however, that the
indemnity agreement contained in this subsection (a) with
respect to any Preliminary Prospectus or amended Preliminary
Prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter)
from whom the person asserting any such loss, damage, expense,
liability or claim purchased the Shares which is the subject
thereof if the Prospectus corrected any such alleged untrue
statement or omission and if such Underwriter failed to send
or give a copy of the Prospectus to such person at or prior to
the written confirmation of the sale of such Shares to such
person, unless the failure is the result of noncompliance by
the Fund with Section 5(d) hereof.
If any action, suit or proceeding (together, a
"Proceeding") is brought against an Underwriter or any such
person in respect of which indemnity may be sought against the
Fund or the Investment Adviser pursuant to the foregoing
paragraph, such Underwriter or such person shall promptly
notify the Fund or the Investment Adviser, as the case may be,
in writing of the institution of such Proceeding and the Fund
or the Investment Adviser shall assume the defense of such
Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees
and expenses; provided, however, that the omission to so
notify the Fund or the Investment Adviser shall not relieve
the Fund or the Investment Adviser from any liability which
the Fund or the Investment Adviser may have to any Underwriter
or any such person or otherwise and, unless only to the extent
that, such omission results in the forfeiture of substantive
rights or defenses by the indemnifying party. Such Underwriter
or such person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or of such
person unless the employment of such counsel shall have been
authorized in writing by the Fund or the Investment Adviser,
as the case may be, in connection with the defense of such
Proceeding or the Fund or the Investment Adviser shall not
have, within a
18
reasonable period of time in light of the circumstances,
employed counsel to have charge of the defense of such
Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to
it or them which are different from, additional to or in
conflict with those available to the Fund or the Investment
Adviser (in which case the Fund or the Investment Adviser
shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by
the Fund or the Investment Adviser and paid as incurred (it
being understood, however, that the Fund or the Investment
Adviser shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are
parties to such Proceeding). None of the Fund or the
Investment Adviser shall be liable for any settlement of any
Proceeding effected without its written consent but if settled
with the written consent of the Fund or the Investment
Adviser, the Fund or the Investment Adviser, as the case may
be, agrees to indemnify and hold harmless any Underwriter and
any such person from and against any loss or liability by
reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the
second sentence of this paragraph, then the indemnifying party
agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after
receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall
have given the indemnifying party at least 30 days' prior
notice of its intention to settle. No indemnifying party
shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened
Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault,
culpability or a failure to act, by or on behalf of such
indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Fund and the Investment Adviser, its
directors and officers, and any person who controls the Fund
or the Investment Adviser within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and the successors
and assigns of all of the foregoing persons from and against
any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally,
the Fund or the Investment Adviser or any such person may
incur under the Act, the Exchange Act,
19
the Investment Company Act, the Advisers Act, the common law
or otherwise, insofar as such loss, damage, expense, liability
or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in
and in conformity with information furnished in writing by or
on behalf of such Underwriter through you to the Fund or the
Investment Adviser expressly for use with reference to such
Underwriter in the Registration Statement (or in the
Registration Statement as amended by any post-effective
amendment thereof by the Fund) or in a Prospectus, or arises
out of or is based upon any omission or alleged omission to
state a material fact in connection with such information
required to be stated in such Registration Statement or such
Prospectus or necessary to make such information not
misleading.
If any Proceeding is brought against the Fund, the
Investment Adviser, or any such person in respect of which
indemnity may be sought against any Underwriter pursuant to
the foregoing paragraph, the Fund or the Investment Adviser or
such person shall promptly notify such Underwriter in writing
of the institution of such Proceeding and such Underwriter
shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify such
Underwriter shall not relieve such Underwriter from any
liability which such Underwriter may have to the Fund, the
Investment Adviser, or any such person or otherwise. The Fund,
the Investment Adviser, or such person shall have the right to
employ its own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of the Fund,
the Investment Adviser, or such person, as the case may be,
unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with
the defense of such Proceeding or such Underwriter shall not
have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense
of such Proceeding or such indemnified party or parties shall
have reasonably concluded that there may be defenses available
to it or them which are different from or additional to or in
conflict with those available to such Underwriter (in which
case such Underwriter shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party
or parties, but such Underwriter may employ counsel and
participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such Underwriter),
in any of which events such fees and expenses shall be borne
by such Underwriter and paid as incurred (it being understood,
however, that such Underwriter shall not be liable for the
expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). No
Underwriter shall be liable for any settlement of any such
Proceeding effected without the written consent of such
Underwriter but if settled with
20
the written consent of such Underwriter, such Underwriter
agrees to indemnify and hold harmless the Fund or the
Investment Adviser and any such person from and against any
loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into
more than 60 business days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are
the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and
(b) of this Section 9 in respect of any losses, damages,
expenses, liabilities or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
damages, expenses, liabilities or claims (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Fund and the Investment Adviser on the one
hand and the Underwriters on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of
the Fund and the Investment Adviser on the one hand and of the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Fund or
the Investment Adviser on the one hand and the Underwriters on
the other shall be deemed to be in the same respective
proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting
expenses) received by the Fund and the total underwriting
discounts and commissions received by the Underwriters, bear
to the aggregate public offering price of the Shares. The
relative fault of the Fund and the Investment Adviser on the
one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the
untrue statement or alleged
21
untrue statement of a material fact or omission or alleged
omission relates to information supplied by the Fund or the
Investment Adviser or by the Underwriters and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to
in this subsection shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in
connection with investigating, preparing to defend or
defending any Proceeding.
(d) The Fund and the Investment Adviser and the Underwriters agree
that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations
referred to in subsection (c) above. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required
to contribute any amount in excess of the fees and commissions
received by such Underwriter. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to their respective
underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of
the Fund contained in this Agreement shall remain in full
force and effect regardless of any investigation made by or on
behalf of any Underwriter, its partners, directors or officers
or any person (including each partner, officer or director of
such person) who controls any Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, or
by or on behalf of the Fund, the Investment Adviser, its
directors or officers or any person who controls the Fund, the
Investment Adviser within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of
the Shares. The Fund or the Investment Adviser and each
Underwriter agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of
the Fund, the Investment Adviser, against any of the Fund's,
the Investment Adviser's officers or directors in connection
with the issuance and sale of the Shares, or in connection
with the Registration Statement or Prospectus.
(f) The Fund and the Investment Adviser each acknowledge that the
statements with respect to (1) the public offering of the
Shares as set forth on the cover page of and (2) the
statements relating to stabilization, to selling concessions
and reallowances of selling concessions and with
22
respect to discretionary accounts under the caption
"Underwriting" in the Prospectus constitute the only
information furnished in writing to the Fund by the Managing
Representative on behalf of the Underwriters expressly for use
in such document. The Underwriters severally confirm that
these statements are correct in all material respects and were
so furnished by or on behalf of the Underwriters severally for
use in the Prospectus.
(g) Notwithstanding any other provisions in this Section 9, no
party shall be entitled to indemnification or contribution
under this Underwriting Agreement against any loss, claim,
liability, expense or damage arising by reason of such
person's willful misfeasance, bad faith, gross negligence or
reckless disregard in the performance of its duties hereunder.
10. NOTICES. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or
sent to UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000,
Attention: Syndicate Department and, if to the Fund or the Investment
Adviser, shall be sufficient in all respects if delivered or sent to
the Fund or the Investment Adviser, as the case may be, at the offices
of the Fund or the Investment Adviser at 000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
XX 00000-0000, Attention: Xxxxx X. Xxxxxx, Senior Vice President and
General Counsel.
11. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim, counterclaim
or dispute of any kind or nature whatsoever arising out of or in any
way relating to this Agreement ("Claim"), directly or indirectly, shall
be governed by, and construed in accordance with, the laws of the State
of New York. The Section headings in this Agreement have been inserted
as a matter of convenience of reference and are not a part of this
Agreement.
12. SUBMISSION TO JURISDICTION. 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 jurisdiction over the adjudication of
such matters, and the Fund consents to the jurisdiction of such courts
and personal service with respect thereto. The Fund 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 UBS Securities LLC or any
indemnified party. Each of UBS Securities LLC, the Fund (on its behalf
and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) and the Investment Adviser (on its behalf
and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waives all right to trial by jury in any
action, proceeding or counterclaim (whether based upon contract, tort
or otherwise) in any way arising out of or relating to this Agreement.
Each of the Fund and the Investment Adviser agrees that a final
judgment in any such action, proceeding or counterclaim brought in any
such court may be enforced in any other courts in the
23
jurisdiction of which the Fund or the Investment Adviser, as the case
may be, is or may be subject, by suit upon such judgment.
13. PARTIES AT INTEREST. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Fund and to the
extent provided in Section 9 hereof the controlling persons, directors
and officers referred to in such section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right under or by virtue of
this Agreement.
14. COUNTERPARTS. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same
agreement among the parties.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Underwriters, the Fund or the Investment Adviser, and any successor or
assign of any substantial portion of the Fund's, the Investment
Adviser's, or any of the Underwriters' respective businesses and/or
assets.
16. DISCLAIMER OF LIABILITY OF TRUSTEES AND BENEFICIARIES. A copy of the
Declaration of Trust is on file with the Secretary of The Commonwealth
of Massachusetts, and notice hereby is given that this Underwriting
Agreement is executed on behalf of the Trustees of the Fund as Trustees
and not individually and that the obligations or arising out of this
Underwriting Agreement are not binding upon any of the Trustees or
beneficiaries individually but are binding only upon the assets and
properties of the Fund.
24
If the foregoing correctly sets forth the understanding among the
Fund and the Underwriters, please so indicate in the space provided below for
the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement among the Fund, the Investment Adviser and the Underwriters,
severally.
Very truly yours,
XXXX XXXXXXX TAX-ADVANTAGED
DIVIDEND INCOME FUND
--------------------------
By:
Title:
XXXX XXXXXXX ADVISERS, LLC
--------------------------
By:
Title:
25
Accepted and agreed to as of the date first above written, on behalf of
themselves and the other several Underwriters named in Schedule A
By: UBS SECURITIES LLC
--------------------------
By:
Title:
--------------------------
By:
Title:
26
SCHEDULE A
Number of Shares to be
Underwriter Purchased
----------- ---------
UBS Securities LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
TOTAL
A-1
SCHEDULE B
FORM OF OPINION OF
XXXX & XXXX REGARDING THE FUND
April , 2004
UBS Securities LLC
As Representative of the
Several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Xxxx Xxxxxxx Tax-Advantaged Dividend Income Fund
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 6(e) of the
Underwriting Agreement, dated as of August 14, 2003 (the "Underwriting
Agreement"), among you, as Representative of the several Underwriters, Xxxx
Xxxxxxx Advisers, LLC, a Delaware limited liability company (the "Adviser"), and
Xxxx Xxxxxxx Tax-Advantaged Dividend Income Fund, a Massachusetts business trust
(the "Fund"). Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings ascribed to them in the Underwriting
Agreement.
We have acted as counsel for the Fund and the Adviser in connection with
the sale to the Underwriters by the Fund of an aggregate of 3,800 preferred
shares of beneficial interest of the Fund, no par value, designated Series M
Auction Preferred Shares of the Fund, 3,800 preferred shares of beneficial
interest of the Fund, no par value, designated Series W Auction Preferred Shares
of the Fund, 3,800 preferred shares of beneficial interest of the Fund, no par
value, designated Series TH Auction Preferred Shares of the Fund, and 3,800
preferred shares of beneficial interest of the Fund, no par value, designated
Series F Auction Preferred Shares of the Fund, each with a liquidation
preference of $25,000 per share (collectively, the "Shares"), all pursuant to
the Section 1 of the Underwriting Agreement. As such counsel, we have assisted
in the preparation and filing with the Securities and Exchange Commission (the
"Commission") of the Fund's Registration Statement on Form N-2 dated July 14,
2003 (File Nos. 333-113675 and 811-21416), and amendment No. 1, which
Registration Statement became effective on [ ], 2004 (the "Effective Date").
Such Registration Statement, in the form in which it became effective, is
referred to herein as the "Registration Statement," and the prospectus dated [
], 2004 and statement of additional information dated [ ], 2004 included
therein, as filed pursuant to Rule 497 of the Securities Act of 1933, as amended
(the "Securities Act"), on [ ], 2004, are referred to herein as the "Prospectus"
and the "Statement of Additional Information."
B-1
We have examined and relied upon the Declaration of Trust and Amended
By-laws of the Fund, each as amended to date, records of meetings or written
actions of shareholders and of the Board of Trustees of the Fund, proceedings of
the Fund in connection with the authorization and issuance of the Shares, the
Registration Statement, the Prospectus, the Statement of Additional Information,
the Underwriting Agreement, certificates of representatives of the Fund,
certificates of public officials and such other documents as we have deemed
necessary as a basis for the opinions hereinafter expressed. We have assumed
that all corporate or trust records of the Fund and the Adviser and stock books
of the Fund and are complete and accurate.
Insofar as this opinion relates to factual matters, information with
respect to which is in the possession of the Fund or the Adviser, we have
relied, with your permission, upon certificates, statements and representations
of officers and other representatives of the Fund and the Adviser,
representations made in the Underwriting Agreement and statements contained in
the Registration Statement. We have not attempted to verify independently such
facts, although nothing has come to our attention which has caused us to
question the accuracy of such certificates, statements or representations.
In our examination of the documents referred to above, we have assumed the
genuineness of all signatures, the legal capacity of each individual signing
such documents, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as copies,
and the authenticity of the originals of such documents.
Any reference to "our knowledge" or "best of our knowledge" or to any
matters "known to us," "of which we are aware" or "coming to our attention" or
any variation of any of the foregoing, shall mean the conscious awareness, as to
the existence or absence of any facts, which would contradict the opinions and
statements so expressed, of the attorneys of this firm who have rendered
substantive attention to the transaction to which this opinion relates. Other
than as expressly set forth below, we have not undertaken, for purposes of this
opinion, any independent investigation to determine the existence or absence of
such facts, and no inference as to our knowledge of the existence or absence of
such facts should be drawn from the fact of our representation of the Fund and
the Adviser. Moreover, we have not searched any electronic databases or the
dockets of any court, regulatory body or governmental agency or other filing
office in any jurisdiction.
For purposes of this opinion, we have assumed that the agreements referred
to herein have been duly authorized, executed and delivered by all parties
thereto other than the Fund, and that all such other parties have all requisite
power and authority to effect the transactions contemplated by such agreements.
We have also assumed that each such agreement is the valid and binding
obligation of each party thereto other than the Fund and is enforceable against
all such other parties in accordance with its terms. We do not render any
opinion as to the application of any federal or state law or regulation to the
power, authority or competence of any party to the agreements other than the
Fund.
B-2
Our opinions set forth below are qualified to the extent that they may be
subject to or affected by (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws relating to or affecting the
rights of creditors generally, (ii) statutory or decisional law concerning
recourse by creditors to security in the absence of notice or hearing, (iii)
duties and standards imposed on creditors and parties to contracts, including,
without limitation, requirements of good faith, reasonableness and fair dealing,
and (iv) general equitable principles. We express no opinion as to the
availability of any equitable or specific remedy upon any breach of any of the
agreements as to which we are opining herein, or any of the agreements,
documents or obligations referred to therein, or to the successful assertion of
any equitable defenses, inasmuch as the availability of such remedies or the
success of any equitable defense may be subject to the discretion of a court.
Without limiting the foregoing, with respect to our opinion in paragraph 9
below, (i) we are expressing no opinion as to the enforceability of the
indemnification or contribution provisions of the Underwriting Agreement, (ii)
we note that a court may refuse to enforce, or may limit the application of, the
Underwriting Agreement or certain provisions thereof, as unconscionable or
contrary to public policy, and (iii) we have assumed compliance by all parties
with federal and state securities laws.
We also express no opinion herein as to any provision of any agreement (a)
which may be deemed to or construed to waive any right of the Fund, (b) to the
effect that rights and remedies are not exclusive, that every right or remedy is
cumulative and may be exercised in addition to or with any other right or remedy
and does not preclude recourse to one or more other rights or remedies, (c)
relating to the effect of invalidity or unenforceability of any provision of any
agreement on the validity or enforceability of any other provision thereof, (d)
requiring the payment of penalties, consequential damages or liquidated damages,
(e) which is in violation of public policy, including, without limitation, any
provision relating to non-competition and non-solicitation or relating to
indemnification and contribution with respect to securities law matters, (f)
purporting to indemnify any person against his, her or its own negligence or
intentional misconduct, (g) which provides that the terms of any agreement may
not be waived or modified except in writing or (h) relating to choice of law or
consent to jurisdiction.
Our opinion expressed in paragraph 1 below as to the valid existence and
good standing of the Fund is based solely on a certificate of legal existence
issued by the Secretary of State of the Commonwealth of Massachusetts, a copy of
which has been made available to your counsel, and our opinion with respect to
such matters is rendered as of the date of such certificate and limited
accordingly. We express no opinion as to the tax good standing of the Fund in
any jurisdiction.
In connection with our opinion expressed in paragraph 2 below, insofar as
it relates to full payment for the outstanding Common Shares of the Fund, we
have relied solely on a certificate of an officer of the Fund. Our opinion
expressed in paragraph 2 below as to issued and outstanding shares of capital
stock of the Fund is based solely on a certificate of the Fund's transfer agent,
which we assume to be complete and accurate. Our opinion expressed in paragraph
2 below as to the due and valid issuance of all
B-3
outstanding common shares of the Fund is based solely on a review of the
corporate minute books of the Fund, and a certificate of an officer of the Fund,
each of which we assume to be complete and accurate.
Our opinion expressed in paragraph 4 below as to the effectiveness of the
Registration Statement under the Securities Act is based solely upon oral advice
from [ ] at the Division of Investment Management of the Commission that such
Registration Statement was declared effective as of [ ] p.m. on [ ], 2004. Our
opinion expressed in paragraph 10 below as to the listing of the Common Shares
on the New York Stock Exchange is solely based upon a letter from the Exchange
to the Fund dated [ ], 2004.
Our opinions in paragraphs 2 and 3 below are qualified to the extent that,
under Massachusetts law, shareholders of a Massachusetts business trust may be
held personally liable for the obligations of the Fund. However, the Declaration
of Trust disclaims shareholders liability for acts or obligations of the Fund.
Also, the Declaration of Trust provides for indemnification out of Fund property
for all loss and expense of any shareholder held personally liable for the
obligations of the Fund.
We have not made any investigation of the laws of any jurisdiction other
than the state laws of the Commonwealth of Massachusetts and the federal laws of
the United States of America. To the extent that any other laws govern any of
the matters as to which we express an opinion below, we have assumed for
purposes of this opinion, with your permission and without independent
investigation, that the laws of such jurisdiction are identical to the state
laws of the Commonwealth of Massachusetts, and we express no opinion as to
whether such assumption is reasonable or correct. We express no opinion with
respect to the securities or Blue Sky laws of any state of the United States,
with respect to state or federal antifraud laws (except to the extent expressly
provided in the third to last paragraph below) or with respect to the approval
by the National Association of Securities Dealers, Inc. of the offering.
On the basis of and subject to the foregoing, we are of the opinion that:
1. The Fund is validly existing as a business trust in good standing
under the laws of the Commonwealth of Massachusetts and has business
trust power and authority to carry on its business and own, lease
and operate its properties as described in the Prospectus, and to
enter into and perform its obligations under the Underwriting
Agreement.
2. The authorized, issued and outstanding shares of beneficial interest
of the Fund as of the date of the Prospectus are as set forth in the
Prospectus under the caption "The Fund". All issued and outstanding
shares of beneficial interest of the Fund as of the date hereof have
been duly authorized, validly issued, and fully paid and are not
subject to any preemptive or similar statutory rights under the
Massachusetts Business Trust statute or, to our knowledge, similar
contractual rights granted by the Fund.
B-4
3. The Shares have been duly authorized and, when issued and delivered
to the Underwriters against payment therefor pursuant to the
Underwriting Agreement, will be validly issued and fully paid.
4. The Registration Statement has been declared effective under the
Securities Act. Any required filing of the Prospectus pursuant to
Rule 497(c) or Rule 497(h) has been made in the manner and within
the time period required by Rule 497. To the best of our knowledge,
no stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act. To the best of
our knowledge, no order of suspension or revocation of registration
pursuant to Section 8(e) of the Investment Company Act of 1940, as
amended (the "1940 Act"), has been issued, and no proceedings for
any such purpose have been instituted or are pending or threatened
by the Commission.
5. The Fund is registered with the Commission under the 1940 Act as a
closed-end, diversified management investment company; and to our
knowledge, no order of suspension or revocation of such registration
has been issued nor have any proceedings therefore been initiated or
threatened by the Commission.
6. The Underwriting Agreement has been duly authorized, executed and
delivered by the Fund.
7. Each of the Investment Advisory Agreement between the Fund and the
Adviser, dated February 27, 2004 (the "Investment Advisory
Agreement"), the Custodian Agreement between the Fund and The Bank
of New York, dated February 27, 2004 (the "Custodian Agreement"),
the Transfer Agency Agreement between the Fund and Mellon Investor
Services LLC, dated February 27, 2004 (the "Transfer Agency
Agreement"), the Auction Agency Agreement between the Fund and
Deutsche Bank Trust Company Americas, dated April 30, 2004 (the
"Auction Agency Agreement"), the Letter Agreement between the Fund
and the Depository Trust Company, dated April 28, 2004 (the "DTC
Agreement"), the Underwriting Agreement, the Shareholder Servicing
Agreement between the Adviser and UBS Securities, LLC, dated
February 27, 2004, the Lead Managing Underwriter Additional
Compensation Agreement between the Adviser and UBS Securities LLC,
dated February 27, 2004, the Lead Managing Underwriter Additional
Compensation Agreement between the Adviser and Merrill, Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated, dated February 27, 2004, and
the Qualifying Underwriter Additional Compensation Agreement with
Wachovia Capital Markets, LLC and X.X. Xxxxxxx & Sons, Inc., dated
February 27, 2004 comply in all material respects with all
applicable provisions of the 1940 Act, the Investment Advisers Act
of 1940, as amended (the "Advisers Act"), and the rules and
regulations of the Commission under the 1940 Act and the Advisers
Act.
B-5
8. Each of the Investment Advisory Agreement, the Custodian Agreement,
the Transfer Agency Agreement, the Auction Agency Agreement and the
DTC Agreement has been duly authorized by all requisite action on
the part of the Fund, executed and delivered by the Fund, as of the
date noted therein. Assuming due authorization, execution and
delivery by the other parties thereto, each of the Investment
Advisory Agreements, the Custodian Agreement, the Transfer Agency
Agreement, the Auction Agency Agreement and the DTC Agreement
constitutes a valid and binding agreement of the Fund, enforceable
against the Fund in accordance with its terms.
9. The execution, delivery and performance of the Investment Advisory
Agreement, Transfer Agency Agreement, Custodian Agreement and the
Underwriting Agreement by the Fund, the compliance by the Fund with
all the provisions thereof and the consummation by the Fund of the
transactions contemplated thereby (including the issuance and sale
of the Shares and the use of the proceeds from the sale of the
Shares as described in the Prospectus under the caption "Use of
Proceeds") do not and will not (A) require any consent, approval,
authorization or other order of, or qualification with, any
Massachusetts state or U.S. federal court or governmental body or
agency (except such as may be required under the securities or Blue
Sky laws of the various states or the National Association of
Securities Dealers, Inc. or as have been obtained under the federal
securities laws), (B) conflict with or constitute a breach of any of
the terms or provisions of, or a default under, or result in the
imposition of a lien, charge or encumbrance upon the assets of the
Fund pursuant to any indenture, loan agreement, mortgage, lease or
other agreement or instrument filed as an exhibit to the
Registration Statement, (C) violate or conflict with the Declaration
of Trust or By-laws, (D) violate or conflict with any applicable
U.S. federal or Massachusetts state law, rule or regulation which in
our experience is normally applicable in transactions of the type
contemplated by the Underwriting Agreement, or (E) violate or
conflict with any judgment, order or decree specifically naming the
Fund or its property of which we are aware.
10. The Common Shares are listed on the New York Stock Exchange.
11. To our knowledge, there are no legal or governmental proceedings
pending or threatened against the Fund.
12. The statements in the Prospectus under the caption "Description of
the Shares" and in Item 29 of Part C of the Registration Statement,
insofar as such statements constitute matters of law or legal
conclusions, are correct in all material respects.
B-6
13. The Fund does not require any tax or other rulings to enable it to
qualify as a regulated investment company under Subchapter M of the
Internal Revenue Code of 1986, as amended.
14. Each of the section in the Prospectus entitled "U.S. federal income
tax matters" and the section in the Statement of Additional
Information entitled "U.S. federal income tax matters" is a fair
summary of the principal United States federal income tax rules
currently in effect applicable to the Fund and to the purchase,
ownership and disposition of the Shares.
15. The Registration Statement, including any Rule 430A Information, the
Prospectus and each amendment or supplement to the Registration
Statement and Prospectus as of their respective effective or issue
dates (other than the financial statements and supporting schedules
including the notes and schedules thereto, or any other financial or
accounting data included therein or omitted therefrom, as to which
we express no opinion), and the notification on Form N-8A complied
as to form in all material respects with the requirements of the
Securities Act, the 1940 Act and the rules and regulations of the
Commission thereunder.
In connection with the preparation of the Registration Statement, the
Prospectus and the Statement of Additional Information, we have participated in
conferences with officers and representatives of the Fund and the Adviser,
representatives of the Underwriters, counsel for the Underwriters and the
independent accountants of the Fund, at which conferences we made inquiries of
such persons and others and discussed the contents of the Registration Statement
and the Prospectus and the Statement of Additional Information. While the
limitations inherent in the independent verification of factual matters and the
character of determinations involved in the registration process are such that
we are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, subject to the foregoing and based on such
participation, inquiries and discussions, no facts have come to our attention
which have caused us to believe that the Registration Statement, as of the
Effective Date (but after giving effect to changes incorporated pursuant to Rule
430A under the Securities Act), contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading (except that we
express no such view with respect to the financial statements, including the
notes and schedules thereto, or any other financial or accounting data included
therein), or that the Prospectus, as of the date it was filed with the
Commission pursuant to Rule 497 under the Securities Act or as of the date
hereof, contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading (except that we
express no such view with respect to the financial statements, including the
notes and schedules thereto, or any other financial or accounting data included
therein).
B-7
This opinion is based upon currently existing statutes, rules, regulations
and judicial decisions and is rendered as of the date hereof, and we disclaim
any obligation to advise you of any change in any of the foregoing sources of
law or subsequent developments in law or changes in facts or circumstances which
might affect any matters or opinions set forth herein. Please note that we are
opining only as to the matters expressly set forth herein, and no opinion should
be inferred as to any other matters.
This opinion is being furnished to you, as Representative of the
Underwriters, at the request of the Fund pursuant to the Underwriting Agreement,
is solely for the benefit of the Underwriters, and may not be relied upon by you
for any other purpose, or furnished to, quoted to or relied upon by any other
party for any purpose, without our prior written consent.
B-8
SCHEDULE C
FORM OF OPINION OF INTERNAL COUNSEL
REGARDING XXXX XXXXXXX ADVISERS, LLC
i. Xxxx Xxxxxxx Advisers, LLC ("Xxxx Xxxxxxx Advisers") has been duly formed and
is validly existing as a limited liability company under the laws of the State
of Delaware. Xxxx Xxxxxxx Advisers has limited liability company power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its obligations
under the Underwriting Agreement, the Shareholder Servicing Agreement, the
Additional Compensation Agreements and the Investment Advisory Agreement.
ii. Xxxx Xxxxxxx Advisers is registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act or the Investment Company
Act from acting as investment adviser and administrator for the Fund as
contemplated by the Investment Advisory Agreement, the Registration Statement
and the Prospectus.
iii. The Underwriting Agreement, the Shareholder Servicing Agreement, the
Investment Advisory Agreement and the Additional Compensation Agreements have
been duly authorized, executed and delivered by Xxxx Xxxxxxx Advisers, and the
Investment Advisory Agreement, the Shareholder Servicing Agreement and the
Additional Compensation Agreements each constitutes a valid and binding
obligation of Xxxx Xxxxxxx Advisers, enforceable in accordance with their
respective terms
iv. The execution, delivery and performance of the Underwriting Agreement by
Xxxx Xxxxxxx Advisers, the compliance by Xxxx Xxxxxxx Advisers with all the
provisions thereof and the consummation by Xxxx Xxxxxxx Advisers of the
transactions contemplated thereby do not and will not (A) require any consent,
approval, authorization or order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states or the National Association of Securities
Dealers, Inc. or as have been obtained under the federal securities laws), (B)
conflict with or constitute a breach of any of the terms or provisions of, or a
default under or result in the imposition of a lien, charge or encumbrance upon
the assets of Xxxx Xxxxxxx Advisers pursuant to, any indenture, loan agreement,
mortgage, lease or other agreement or instrument to which Xxxx Xxxxxxx Advisers
is a party filed as an exhibit to the Registration Statement, (C) violate or
conflict with the Certificate of Limited Liability Company or the Limited
Liability Company Agreement of Xxxx Xxxxxxx Advisers, or (D) violate or conflict
with any applicable federal and Massachusetts law, rule or regulation or the
Delaware Limited Liability Company statute, or (E) violate or conflict with any
judgment, order or decree specifically naming Xxxx Xxxxxxx Advisers or its
property.
v. To our knowledge, there is no legal or governmental proceeding pending or
threatened against Xxxx Xxxxxxx Advisers that is either: (1) required by the
Securities
C-1
Act or the 1940 Act and their Rules and Regulations to be described in the
Registration Statement or Prospectus that is not already described, or: (2)
which would, under Section 9 of the 1940 Act, make Xxxx Xxxxxxx Advisers
ineligible to act as the Fund's investment adviser.
In connection with the registration of the Shares, such counsel has advised Xxxx
Xxxxxxx Advisers as to the requirements of the Securities Act, the Investment
Company Act and the applicable rules and regulations of the Commission
thereunder and has rendered other legal advice and assistance to Xxxx Xxxxxxx
Advisers in the course of the preparation of the registration Statement and the
Prospectus. Rendering such assistance involved, among other things, discussions
and inquiries concerning various legal and related subjects and reviews of
certain corporate records, documents and proceedings. Such counsel has also
participated in conferences with representatives of the Fund and its accountants
and Xxxx Xxxxxxx Advisers at which the contents of the registration and
Prospectus and related matters were discussed. With your permission, such
counsel not undertaken, except as otherwise indicated herein, to determine
independently, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements in the Registration Statement or
Prospectus. On the basis of the information which was developed in the course of
the performance of the services referred to above, no information has come to
such counsel's attention that would lead him to believe that the Registration
Statement, at the time it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as of its date and as of the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that any amendment
or supplement to the Prospectus, as of its respective date, and as of the date
hereof, contained any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements in the
Prospectus, in the light of the circumstances under which they were made, not
misleading (except the financial statements, schedules and other financial data
included therein or any other financial or accounting data included therein, as
to which such counsel expresses no view).
C-2
SCHEDULE D
FORM OF ACCOUNTANT'S LETTER
April , 2004
The Board of Trustees of
Xxxx Xxxxxxx Tax-Advantaged Dividend Income Fund
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Managing Representative of the Underwriters
Ladies and Gentlemen:
We have audited the statement of assets and liabilities of Xxxx
Xxxxxxx Tax-Advantaged Dividend Income Fund (the "Fund") as of , 2004 included
in the Registration Statement on Form N-2 filed by the Fund under the Securities
Act of 1933 (the "Act") (File No. 333-113675) and under the Investment Company
Act of 1940 (the "1940 Act") (File No. 811-21416); such statement and our report
with respect to such statement are included in the Registration Statement.
In connection with the Registration Statement:
1. We are independent public accountants with respect to the Fund
within the meaning of the Act and the applicable rules and regulations
thereunder.
2. In our opinion, the statement of assets and liabilities included
in the Registration Statement and audited by us complies as to form in all
respects with the applicable accounting requirements of the Act, the 1940
Act and the respective rules and regulations thereunder.
3. For purposes of this letter we have read the minutes of all
meetings of the Shareholders, the Board of Trustees and all Committees of
the Board of Trustees of the Fund as set forth in the minute books at the
offices of the Fund, officials of the Fund having advised us that the
minutes of all such meetings through , 2004, were set forth therein.
4. Fund officials have advised us that no financial statements as of
any date subsequent to , 2004, are available. We have made inquiries of
certain officials of the Fund who have responsibility for financial and
accounting matters regarding whether there was any change at , 2004, in
the capital
D-1
shares or net assets of the Fund as compared with amounts shown in the
, 2004, statement of assets and liabilities included in the
Registration Statement, except for changes that the Registration Statement
discloses have occurred or may occur. On the basis of our inquiries and
our reading of the minutes as described in Paragraph 3, nothing came to
our attention that caused us to believe that there were any such changes.
The foregoing procedures do not constitute an audit made in accordance
with generally accepted auditing standards. Accordingly, we make no
representations as to the sufficiency of the foregoing procedures for your
purposes.
This letter is solely for the information of the addressees and to assist
the underwriters in conducting and documenting their investigation of the
affairs of the Fund in connection with the offering of the securities covered by
the Registration Statement, and is not to be used, circulated, quoted or
otherwise referred to within or without the underwriting group for any other
purpose, including but not limited to the registration, purchase or sale of
securities, nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the Registration
Statement.
Very Truly Yours,
D-2
