▇▇▇▇▇ ▇▇▇▇▇ Tax-Advantaged Dividend Income Fund
Auction Preferred Shares
Par Value $0.01 Per Share
UNDERWRITING AGREEMENT
[ ], 2003
UNDERWRITING AGREEMENT
[ ], 2003
UBS Securities LLC
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Citigroup Global Markets Inc.
Wachovia Capital Markets, LLC
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
as Representatives
c/o UBS Securities LLC
as Managing Representative
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇ ▇▇▇▇▇ 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 [ ]
preferred shares of beneficial interest, par value $0.01 per share, designated
Series A Auction Preferred Shares, [ ] preferred shares of beneficial interest,
par value $0.01 per share, designated Series B Auction Preferred Shares, [ ]
preferred shares of beneficial interest, par value $0.01 per share, designated
Series C Auction Preferred Shares, [ ] preferred shares of beneficial interest,
par value $0.01 per share, designated Series D Auction Preferred Shares, [ ]
preferred shares of beneficial interest, par value $0.01 per share, designated
Series E Auction Preferred Shares, [ ] preferred shares of beneficial interest,
par value $0.01 per share, designated Series F Auction Preferred Shares, and [ ]
preferred shares of beneficial interest, par value $0.01 per share, designated
Series G Auction Preferred Shares, each with a liquidation preference of $25,000
per share (the "Shares"), of the Fund. The Shares are described in the
Prospectus which is defined 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 "Securities 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.
333-109588 and 811-21400), including a prospectus and a statement of additional
information, relating to the Shares. The Fund has furnished to the
Representatives, for use by the Underwriters and by dealers, copies
2
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 Securities Act and
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities 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 Securities 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. UBS Securities LLC ("UBS Securities"
or the "Managing Representative") will act as managing representative for the
Underwriters.
▇▇▇▇▇ ▇▇▇▇▇ Management, a Massachusetts business trust ("▇▇▇▇▇ ▇▇▇▇▇" or
the "Investment Adviser") will act as the Fund's investment adviser pursuant to
an Investment Advisory Agreement by and between the Fund and the Investment
Adviser, dated as of August 11, 2003 (the "Investment Advisory Agreement").
Investors Bank & Trust Company will act as the custodian (the "Custodian") of
the Fund's cash and portfolio assets pursuant to a Custodian Agreement, dated as
of August 11, 2003 (the "Custodian Agreement"). PFPC Inc. will act as the Fund's
transfer agent, registrar, and dividend disbursing agent (the "Transfer Agent")
pursuant to a Transfer Agency Services Agreement, dated as of August 11, 2003
(the "Transfer Agency Agreement"). ▇▇▇▇▇ ▇▇▇▇▇ will act as the administrator of
the Fund pursuant to an Administration Agreement, dated as of August 11, 2003
(the "Administration Agreement"). UBS Securities will act as the Fund's
Shareholder Servicing Agent pursuant to a Shareholder Servicing Agreement, dated
as of September 30, 2003 (the "Shareholder Servicing Agreement"). Deutsche Bank
Trust Company Americas will act as the Fund's auction agent pursuant to an
Auction Agency Agreement, dated as of [ ], 2003 (the "Auction Agency
Agreement"). The Fund has entered into a Letter Agreement, dated as of [ ],
2003, with the Depository Trust Company (the "DTC Agreement"). In addition, the
Fund has adopted a dividend reinvestment plan (the "Dividend Reinvestment Plan")
pursuant to which holders of Shares may have their dividends automatically
reinvested in additional Common Shares of the Fund if so elected.
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
3
at a purchase price of $24,750.00 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 Shares to you through the facilities of the
Depository Trust Company ("DTC") for the respective accounts of the
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." Certificates for the Shares, if any, shall be delivered to you in
definitive form in such names and in such denominations as you shall
specify on the second business day preceding the Time of Purchase. For the
purpose of expediting the checking of the certificates for the Shares by
you, the Fund agrees to make such certificates, if any, 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 (i) 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 Securities Act, as the case may be, (ii) 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 (iii) 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
Securities 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
4
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 the Underwriters expressly for use in the 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 business trust
under the laws of The Commonwealth of Massachusetts, with full power
and authority to conduct all the activities conducted by it, to own or
lease all assets owned or leased by it and 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 qualified or be in good standing would not have a
material adverse effect on the Fund, 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. 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 conform in all
material respects to the description of them in the Prospectus. All
the outstanding Common Shares have been duly authorized and are
validly issued, fully paid and nonassessable (except as described in
the Registration Statement). 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 nonassessable (except as described in the Registration Statement).
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 any final amendment to the
Registration Statement (a "Final Amendment"), if not already filed,
all action under the Securities Act and the Investment Company Act, as
the case may be, necessary to make the public offering and consummate
the
5
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
Custodian Agreement, the Transfer Agency Agreement, the Auction Agency
Agreement, the DTC Agreement and the Dividend Reinvestment Plan
(collectively, the "Fund 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, or the Amended and Restated By-laws
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.
6
(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 by the Fund for the
consummation by the Fund of the transactions to be performed by 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
Securities 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.
(j) The Common Shares are listed on the New York Stock Exchange.
(k) Deloitte & Touche LLP, whose report appears in the Prospectus, are
independent public accountants with respect to the Fund as required by
the Securities Act and the Investment Company Act.
(l) 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.
(m) 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.
(n) 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, (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.
7
(o) 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 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.
(p) The Shares have been, or prior to the Closing Date will be, assigned a
rating of "AAA" by Fitch and "Aaa" by ▇▇▇▇▇'▇.
(q) 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").
(r) To the knowledge of the Fund after due inquiry, 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, the "sales materials"); any sales materials and any
road show slides or road show tapes complied and comply in all
material respects with the applicable requirements of the Securities
Act and the rules and interpretations of the National Association of
Securities Dealers, Inc.; 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
business trust under the laws of The Commonwealth of Massachusetts
with full power and authority to conduct all of the activities
conducted by it, to own or lease all of the assets owned or leased by
it and to conduct its business as described in the Registration
Statement and Prospectus, and the Investment Adviser is duly licensed
and qualified to do business and in
8
good standing in each jurisdiction in which it is required to be so
qualified, except to the extent that failure to be so qualified or be
in good standing would not have a material adverse affect on the
Investment Adviser's ability to provide services to the Fund; 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 carry on its business as contemplated in the Registration
Statement and the Prospectus.
(b) The Investment Adviser is (i) duly 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 full power and authority to enter into each
of this Underwriting Agreement, the Investment Advisory Agreement, the
Administration Agreement, and the Shareholder Servicing Agreement
(collectively, 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 in any material respect 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 Declaration of Trust or By-Laws 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.
(e) No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association,
whether foreign or
9
domestic, is required 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 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.
(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 or that might reasonably
be expected to result in any material adverse change in the condition,
financial or otherwise, business affairs or business prospects of the
Investment Adviser or the ability of the Investment Adviser to fulfill
its respective obligations under any Investment Adviser Agreement.
(h) In the event that the Fund or the Investment Adviser makes available
any promotional materials (other than the sales materials) intended
for use only by qualified broker-dealers and registered
representatives thereof by means of an Internet web site or similar
electronic means, the Investment Adviser will install and maintain
pre-qualification and password-protection or similar procedures which
will effectively prohibit access to such promotional materials by
persons other than qualified broker-dealers and registered
representatives thereof.
5. AGREEMENTS OF THE PARTIES.
(a) If the registration statement relating to the Shares has not yet
become effective, the Fund will promptly file a 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
10
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 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 a certification pursuant
to Rule 497(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
the Managing Representative 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 (i) of the issuance by the
Commission of any order in respect of the Fund or the Investment
Adviser which relates to the Fund, or which relates to any material
arrangements or proposed material arrangements involving the Fund or
the Investment Adviser, (ii) of the initiation or threatening of any
proceedings for, or receipt by the Fund of any notice with respect to,
any 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, (iii) of receipt by
the Fund, or any representative or attorney of the Fund, of any other
communication from the Commission relating in any material way to the
Fund, the Registration Statement, the Notification, any Preliminary
Prospectus, the Prospectus or to the transactions contemplated by this
Underwriting Agreement and (iv) 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
Fund, which relates in any material way to the Fund or any material
arrangements or proposed material arrangements involving 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
11
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 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 the Representatives, the Underwriters and any dealers, at such
office or offices as the Representatives may designate, as many copies
of the Prospectus as the Representatives 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 under which they
were made, 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 under which they were made, 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 the last paragraph of Section 11(a) of
the Act and, at the option of the Fund, Rule 158 under the Securities
Act.
(f) 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
connection with the registration of the Shares and all other expenses
in connection with the preparation, printing and filing of the
Registration
12
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 Trust's or the Investment Adviser'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 Depository Trust Company
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 8 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.
(g) 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 (x) the Fund or the Investment
Adviser pursuant to any of the provisions hereof or (y) by the
Representatives 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, the Investment Adviser 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, the Investment Adviser and the
other Underwriters for damages occasioned by its default.
(h) 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 any issuances of Common Shares pursuant to the Dividend
Reinvestment Plan.
13
(i) 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.
(j) No later than the Closing Date, the Underwriters will provide, and
will cause any selling group member to whom they have sold Shares to
provide, the Auction Agent with a list of the record names of the
persons to whom they have sold Shares, the number of Shares sold to
each such person, and the number of Shares they are holding as of the
Closing Date; provided that in lieu of thereof, an Underwriter may
provide the Auction Agent with a list indicating itself as the sole
holder of all the Shares sold by such Underwriter.
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 material statements made
by the Fund or 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) or (h) or a certificate must have been filed in accordance with
Rule 497(j), as the case may be, under the Securities 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 change in the Common Shares, the Shares or the liabilities of
the Fund except as set forth in or contemplated by the Prospectus;
(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
14
contemplated by the Prospectus which in the opinion of the Managing
Representative would materially adversely affect the market for the
Shares; (iii) the Fund must not have sustained any material loss or
interference with its business from any court or from legislative or
other governmental action, order or decree, whether foreign or
domestic, or from any other occurrence 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 that (i) the signers have carefully
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, to the knowledge of such officers after reasonable
investigation, no order suspending the effectiveness of the
Registration Statement, prohibiting the sale of any of the Shares or
otherwise having a material adverse effect on the Fund 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) to the knowledge of the officers of the
Investment Adviser, after reasonable investigation, no order having a
material adverse effect on the ability of the Investment Adviser to
fulfill its obligations under this Underwriting Agreement or the
Investment
15
Advisory Agreement, 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) has
performed all of its respective agreements that this Underwriting
Agreement requires it to perform by such Closing Date (to the extent
not waived in writing by the Managing Representative).
(e) The Managing Representative must have received 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) The Managing Representative must have received on the Closing Date
from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and its affiliated
entities an opinion dated such 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 have received 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 have received on each
Closing Date a signed letter from such accountants, dated as of such
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 such 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 Fitch and
"Aaa" by ▇▇▇▇▇'▇, 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 APS Asset Coverage and the
APS
16
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.
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 the 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
17
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 are obligated to purchase on the 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 such 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.
Upon the occurrence of the circumstances described in the foregoing
paragraph (b), 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 5(g) and 9 hereof. Any action taken under this Section will not
affect the liability of any defaulting Underwriter to the Fund or the
Investment Adviser or to any nondefaulting Underwriters arising out of such
default. A substitute underwriter will become an 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 Securities Act or
Section 20 of the Exchange Act, and their successors and assigns of
all of the foregoing
18
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
Securities 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 Prospectus, the
sales materials, 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 (with respect to the
Prospectus, in light of the circumstances under which they were made)
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 to the Fund or the Investment Adviser expressly for
use with reference to any 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 (with respect to
the Prospectus, in light of the circumstances under which they were
made) 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 and the Investment Adviser 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
19
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.
Such Underwriter or such person shall have the right to employ its or
their own counsel in any such case, but the reasonable 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 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 reasonable
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). Neither the Fund nor 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 reasonable 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
20
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, and each of their
respective shareholders, partners, managers, members, trustees,
directors and officers, and any person who controls the Fund or the
Investment Adviser within the meaning of Section 15 of the Securities
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 Securities 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 and in conformity
with information furnished in writing by or on behalf of such
Underwriter 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 (with respect to the Prospectus, in light
of the circumstances under which they were made).
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,
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
21
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 the written consent of such
Underwriter, such Underwriter agrees to indemnify and hold harmless
the Fund, 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 and does not include an admission of fault, culpability or
a failure to act, by or on behalf of such indemnified party.
(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
22
(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
and 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 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, 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
23
of Section 15 of the Securities Act or Section 20 of the Exchange Act,
or by or on behalf of the Fund or the Investment Adviser, its
shareholders, partners, Advisers, members, trustees, directors or
officers or any person who controls the Fund or the Investment Adviser
within the meaning of Section 15 of the Securities 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 and 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 or the Investment Adviser, against any of the Fund's
or the Investment Adviser's shareholders, partners, managers, members,
trustees, directors or officers 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) stabilization and selling
concessions and reallowances of selling concessions and payment of
fees to Underwriters that meet certain minimum sales thresholds under
the caption "Underwriting" in the Prospectus constitute the only
information furnished in writing to the Fund by 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 of its duties 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, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, 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 ▇▇▇▇▇ ▇▇▇▇▇ Management, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
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.
24
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 and UBS Securities each consent to the jurisdiction of such courts
and personal service with respect thereto. The Fund and UBS Securities
hereby consent 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 or any indemnified party.
Each of UBS Securities, 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 unitholders 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 shall be conclusive and binding upon the Fund and
the Investment Adviser, as the case may be, and may be enforced in any
other courts in the 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, the Fund and the Investment
Adviser and to the extent provided in Section 9 hereof the controlling
persons, shareholders, partners, members, trustees, managers, 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 and 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
Agreement and Declaration of Trust of the Fund and ▇▇▇▇▇ ▇▇▇▇▇ is on file
with the Secretary of State of The Commonwealth of Massachusetts, and
notice hereby is given that this Underwriting Agreement is executed on
behalf of the Fund and ▇▇▇▇▇ ▇▇▇▇▇, respectively, by an officer or Trustee
of the Fund or ▇▇▇▇▇ ▇▇▇▇▇, as the case may be, in his or her capacity as
an officer or Trustee of the Fund and
25
not individually and that the obligations under or arising out of this
Underwriting Agreement are not binding upon any of the Trustees, officers
or shareholders individually but are binding only upon the assets and
properties of the Fund or ▇▇▇▇▇ ▇▇▇▇▇, as the case may be.
26
If the foregoing correctly sets forth the understanding among the Fund, the
Investment Adviser and the Underwriters, please so indicate in the space
provided below, whereupon this letter and your acceptance shall constitute a
binding agreement among the Fund, the Investment Adviser and the Underwriters,
severally.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇ TAX-ADVANTAGED DIVIDEND INCOME FUND
-----------------------------------------------
By:
Title:
▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
-----------------------------------------------
By:
Title:
27
Accepted and agreed to as of the date first above written, on behalf of
themselves and the other several Underwriters named in Schedule A
UBS SECURITIES LLC
[ ]
By: UBS SECURITIES LLC
--------------------------
By:
Title:
--------------------------
By:
Title:
28
SCHEDULE A
NUMBER OF SHARES TO BE PURCHASED
NAME SERIES A SERIES B SERIES C SERIES D SERIES E
---- -------- -------- -------- -------- --------
[ ] [ ] [ ] [ ] [ ]
TOTAL
A-1
SCHEDULE B
FORM OF OPINION OF
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP REGARDING THE FUND
1. The Registration Statement and all post-effective
amendments, if any, are effective under the Securities Act and no stop order
with respect thereto has been issued and no proceeding for that purpose has been
instituted or, to the best of our knowledge, is threatened by the Commission.
Any filing of the Prospectus or any supplements thereto required under Rule 497
of the Securities Act Rules prior to the date hereof have been made in the
manner and within the time required by such rule.
2. The Fund has been duly formed and is validly existing as a
Massachusetts business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to conduct all the activities
conducted by it, to own or lease all assets owned (or to be owned) or leased (or
to be leased) by it and 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,
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. The Fund has no subsidiaries.
3. The capitalization of the Fund is as set forth in the
Registration Statement and the Prospectus. The Shares of Beneficial Interest of
the Fund conform in all respects to the description of them in the Prospectus.
All the outstanding Shares of Beneficial Interest have been duly authorized and
are validly issued, fully paid and nonassessable. The Shares to be issued and
delivered to and paid for by the Underwriters in accordance with the
Underwriting Agreement against payment therefor as provided by the 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
nonassessable (except as described in the Registration Statement). No person is
entitled to any preemptive or other similar rights with respect to the Shares.
4. The Fund is duly registered with the Commission under the
Investment Company Act as a diversified, closed-end management investment
company and all action under the Securities Act, the Investment Company Act, the
Securities Act Rules and the Investment Company Act Rules, as the case may be,
necessary to make the public offering and consummate the sale of the Shares as
provided in the Underwriting Agreement has or will have been taken by the Fund.
5. The Fund has full power and authority to enter into each of
the Underwriting Agreement, the Investment Advisory Agreement, the Custodian
Agreement, the Transfer Agency Agreement, the Auction Agency Agreement and the
B-1
DTC Agreement (collectively, the "Fund Agreements") and to perform all of the
terms and provisions thereof to be carried out by it and (A) each Fund Agreement
has been duly and validly authorized, executed and delivered by the Fund, (B)
each Fund Agreement complies in all material respects with all applicable
provisions of the Investment Company Act, the Advisers Act , the Investment
Company Act Rules and the Advisers Act Rules, as the case may be, and (C)
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, (1) 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 (2) as rights to
indemnity thereunder may be limited by federal or state securities laws.
6. None of (A) the execution and delivery by the Fund of the
Fund Agreements, (B) the issue and sale by the Fund of the Shares as
contemplated by the Underwriting Agreement and (C) the performance by the Fund
of its obligations under 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 or the Amended By-Laws of the Fund 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, except that we express no opinion as to the securities or "blue
sky" laws applicable in connection with the purchase and distribution of the
Shares by the Underwriters pursuant to the Underwriting Agreement.
7. 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.
8. 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 by the Fund for the consummation by the Fund of
the transactions to be performed by 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 (A) have been obtained
under the Securities Act, the Investment Company Act, the Advisers Act, the
Securities Act Rules, the Investment Company Act Rules and the Advisers Act
Rules and (B) 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 the Underwriting Agreement.
9. The Common Shares are listed on the New York Stock
Exchange.
10. There is no action, suit or proceeding before or by any
court, commission, regulatory body, administrative agency or other governmental
agency or
B-2
body, foreign or domestic, now pending or, to our knowledge, threatened against
or affecting the Fund, which is required to be disclosed in the Prospectus that
is not disclosed in the Prospectus, and there 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.
11. 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
Code.
12. Each of the sections in the Prospectus entitled
"Distributions and Taxes" and the section in the Statement of Additional
Information entitled "Taxes" 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.
13. The Registration Statement (except the financial
statements and schedules and other financial data included therein as to which
we express no view), at the time it became effective, and the Prospectus (except
as aforesaid), as of the date thereof, complied as to form in all material
respects to the requirements of the Securities Act, the Investment Company Act
and the rules and regulations of the Commission thereunder.
In rendering our opinion, we have relied, as to factual
matters, upon the attached written certificates and statements of officers of
the Fund.
In connection with the registration of the Shares, we have
advised the Fund as to the requirements of the Securities Act, the Investment
Company Act and the applicable rules and regulations of the Commission
thereunder and have rendered other legal advice and assistance to the Fund in
the course of its 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. We also participated in
conferences with representatives of the Fund and its accountants at which the
contents of the Registration Statement and Prospectus and related matters were
discussed. With your permission, we have 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 our attention that would lead us 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
B-3
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, as to which we express no view).
B-4
SCHEDULE C
FORM OF OPINION OF INTERNAL COUNSEL
REGARDING ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
1. ▇▇▇▇▇ ▇▇▇▇▇ has been duly formed and is validly existing as
a Massachusetts business trust under the laws of its jurisdiction of
incorporation with full power and authority to conduct all of the activities
conducted by it, to own or lease all of the assets owned or leased by it and to
conduct its business as described in the Registration Statement and Prospectus,
and ▇▇▇▇▇ ▇▇▇▇▇ is duly licensed and qualified and in good standing in each
other jurisdiction in which it is required to be so qualified and ▇▇▇▇▇ ▇▇▇▇▇
owns, possesses or has obtained and currently maintains all governmental
licenses, permits, consents, orders, approvals and other authorizations, whether
foreign or domestic, necessary for ▇▇▇▇▇ ▇▇▇▇▇ to carry on its business as
contemplated in the Registration Statement and the Prospectus.
2. ▇▇▇▇▇ ▇▇▇▇▇ is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act, the Investment
Company Act, the Advisers Act Rules or the Investment Company Act Rules from
acting as investment adviser for the Fund as contemplated by the Investment
Advisory Agreement, the Registration Statement and the Prospectus.
3. ▇▇▇▇▇ ▇▇▇▇▇ has full power and authority to enter into each
of the Underwriting Agreement, the Investment Advisory Agreement, the
Administration Agreement and the Shareholder Servicing Agreement (collectively,
the "▇▇▇▇▇ ▇▇▇▇▇ Agreements") and to carry out all the terms and provisions
thereof to be carried out by it, and each such agreement has been duly and
validly authorized, executed and delivered by ▇▇▇▇▇ ▇▇▇▇▇; each ▇▇▇▇▇ ▇▇▇▇▇
Agreement complies in all material respects with all provisions of the
Investment Company Act, the Advisers Act, the Investment Company Act Rules and
the Advisers Act Rules; and assuming due authorization, execution and delivery
by the other parties thereto, each ▇▇▇▇▇ ▇▇▇▇▇ Agreement constitutes a legal,
valid and binding obligation of ▇▇▇▇▇ ▇▇▇▇▇, enforceable in accordance with its
terms, (1) 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 (2) as rights to indemnity thereunder may be limited by
federal or state securities laws.
4. Neither (A) the execution and delivery by ▇▇▇▇▇ ▇▇▇▇▇ of
any ▇▇▇▇▇ ▇▇▇▇▇ Agreement nor (B) the consummation by ▇▇▇▇▇ ▇▇▇▇▇ of the
transactions contemplated by, or the performance of its obligations under any
▇▇▇▇▇ ▇▇▇▇▇ Agreement conflicts or will conflict with, or results or will result
in a breach of, the Agreement and Declaration of Trust or By-Laws of ▇▇▇▇▇ ▇▇▇▇▇
or any agreement or instrument to which ▇▇▇▇▇ ▇▇▇▇▇ is a party or by which ▇▇▇▇▇
▇▇▇▇▇ is bound, or any law, rule or regulation, or order of any court,
governmental instrumentality, securities
C-1
exchange or association or arbitrator, whether foreign or domestic, applicable
to ▇▇▇▇▇ ▇▇▇▇▇.
5. No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required for the consummation of the transactions
contemplated in, or the performance by ▇▇▇▇▇ ▇▇▇▇▇ of its obligations under, any
▇▇▇▇▇ ▇▇▇▇▇ Agreement, except such as have been obtained under the Investment
Company Act, the Advisers Act, the Securities Act, the Investment Company Act
Rules, the Advisers Act Rules and the Securities Act Rules.
6. The description of ▇▇▇▇▇ ▇▇▇▇▇ and its business, and the
statements attributable to ▇▇▇▇▇ ▇▇▇▇▇, in the Registration Statement and the
Prospectus complies with the requirements of the Securities Act, the Investment
Company Act, the Securities Act Rules and the Investment Company Act Rules 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.
7. 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 our knowledge,
threatened against or affecting ▇▇▇▇▇ ▇▇▇▇▇ of a nature required to be disclosed
in the Registration Statement or Prospectus or that might reasonably result in
any material adverse change in the condition, financial or otherwise, business
affairs or business prospects of ▇▇▇▇▇ ▇▇▇▇▇ or the ability of ▇▇▇▇▇ ▇▇▇▇▇ to
fulfill its respective obligations under any ▇▇▇▇▇ ▇▇▇▇▇ Agreement.
8. The Registration Statement (except the financial statements
and schedules and other financial data included therein as to which we express
no view), at the time it became effective, and the Prospectus (except as
aforesaid), as of the date thereof, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act,
the Investment Company Act and the rules and regulations of the Commission
thereunder.
In rendering our opinion, we have relied, as to factual
matters, upon the attached written certificates and statements of officers of
▇▇▇▇▇ ▇▇▇▇▇.
In connection with the registration of the Shares, we have
advised ▇▇▇▇▇ ▇▇▇▇▇ as to the requirements of the Securities Act, the Investment
Company Act and the applicable rules and regulations of the Commission
thereunder and have rendered other legal advice and assistance to ▇▇▇▇▇ ▇▇▇▇▇ 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. We also participated in
conferences with representatives of the Fund and its accountants and ▇▇▇▇▇ ▇▇▇▇▇
at which the contents of the registration and Prospectus and related matters
were discussed.
C-2
With your permission, we have 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 our attention that would lead us 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, as to which we express no view).
C-3
SCHEDULE D
FORM OF ACCOUNTANT'S LETTER
, 2003
The Board of Trustees of
▇▇▇▇▇ ▇▇▇▇▇ Tax-Advantaged Dividend Income Fund
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Managing Representative of the Underwriters
Ladies and Gentlemen:
We have audited the statement of assets and liabilities of ▇▇▇▇▇ ▇▇▇▇▇
Tax-Advantaged Dividend Income Fund (the "Fund") as of [ ], 2003 included in the
Registration Statement on Form N-2 filed by the Fund under the Securities Act of
1933 (the "Securities Act") (File No. 333-109588) and under the Investment
Company Act of 1940 (the "Investment Company Act") (File No. 811-21400); 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 Securities Act,
the Investment Company 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 [ ], 2003, were set forth therein.
4. Fund officials have advised us that no financial statements
as of any date subsequent to [ ], 2003, 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 [ ], 2003, in the
capital shares or net assets of the Fund as compared with amounts shown in the
[ ], 2003, statement of
D-1
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,
DELOITTE & TOUCHE LLP
D-2