Exhibit (h)(1)
DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT is dated as of November 16, 2001, by and
between SUNAMERICA SENIOR FLOATING RATE FUND, INC., a Maryland corporation (the
"Corporation") and SUNAMERICA CAPTAL SERVICES, INC., a Delaware corporation (the
"Distributor").
W I T N E S S E T H:
WHEREAS, the Corporation is engaged in business as a closed-end management
investment company and is registered as such under the Investment Company Act of
1940, as amended (the "Act"); and
WHEREAS, the Corporation is authorized to issue shares of common stock (the
"Shares"), in separately designated series representing separate funds with
their own investment objectives, policies and restrictions (the "Funds") and has
registered the Shares of the Funds under the Securities Act of 1933, as amended
(the "Securities Act"), pursuant to a registration statement on Form N-1A (the
"Registration Statement"), including a prospectus (the "Prospectus") and a
statement of additional information (the "Statement of Additional Information");
and
WHEREAS, the Corporation has adopted a Plan of Distribution pursuant to
Rule 12b-1 under the Investment Company Act on behalf of each Fund (the
"Distribution Plans") and may enter into related agreements providing for the
distribution of the Shares of the Funds; and
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
WHEREAS, the Corporation wishes to engage the services of the Distributor
as distributor of the Shares of the Funds and the Distributor is willing to
serve in that capacity;
NOW, THEREFORE, it is hereby agreed between the parties hereto as follows:
1. EXCLUSIVE DISTRIBUTOR. The Funds hereby agree that the Distributor shall
and for the period of this Agreement be exclusive agent for distribution
within the United States and its territories, and the Distributor agrees to
use its best efforts during such period to effect such distribution of the
Shares ; provided, however, that nothing herein shall prevent a Fund, if it
so elects, from selling or otherwise distributing its Shares directly to
any persons other than dealers. In connection therewith, it is contemplated
that the Distributor will enter into agreements with selected securities
dealers. The Funds understand that the Distributor also acts as agent for
distribution of shares of capital stock or beneficial interest, as the case
may be, of other open-end investment companies which have entered into
management and advisory agreements with the Funds' current investment
adviser.
2. SALE OF THE SHARES. The Distributor is authorized as agent for the Funds
and not as principal, to sell the Shares to other purchasers on such terms
as may be provided in the then current Prospectus of the Funds; provided,
however, that no sales shall be confirmed by the Distributor at any time
when, according to advice received by the Distributor from a Fund, the
officers of the Corporation have for any reason sufficient to them
temporarily or permanently suspended or discontinued the sale and issuance
of such Fund's Shares. Each sale shall be effected by the Distributor only
at the applicable price, plus the applicable sales charge, if any,
determined by a Fund in the manner prescribed in its then current
Prospectus. The Distributor shall, insofar as they concern it, comply with
all applicable laws, rules and regulations including, without limiting the
generality of the foregoing, all rules or regulations made or adopted
pursuant to Section 22 of the Act by the Securities and Exchange Commission
or any securities association registered under the Exchange Act.
The Funds agree, as long as the Shares may legally be issued, to fill all
orders confirmed by the Distributor in accordance with the provisions of
this Agreement.
3. EXPENSES; COMPENSATION. The Distributor agrees promptly to pay or reimburse
the Funds for all expenses (except expenses incurred by the Funds in
connection with the preparation, printing and distribution of any
prospectus or report or other communication to shareholders, to the extent
that such expenses are incurred to effect compliance with the Federal or
state laws or to enable such distribution to shareholders) (a) of printing
and distributing copies of any prospectus and of preparing, printing and
distributing any other material used by the Distributor in connection with
offering the Shares for sale, and (b) of advertising in connection with
such offering. The Funds agree to pay all expenses in connection with the
registration of the Shares under the Securities Act, all fees and related
expenses which may be incurred in connection with the qualification of the
Shares for sale in such states (as well as the District of Columbia, Puerto
Rico and other territories) as the Distributor may designate, and all
expenses in connection with maintaining facilities for the issue and
transfer of the Shares, of supplying information, prices and other data to
be furnished by it hereunder and through its agents of all data processing
and related services related to the share distribution activity
contemplated hereby.
As compensation for its services hereunder, the Funds agree to pay to the
Distributor all amounts received as sales charges as described in the
Funds' most current Prospectus. Out of such sales charges, the Distributor
may allow such concessions or reallowances to dealers as it may from time
to time determine.
The Corporation agrees to execute such documents and to furnish such
information as may be reasonably necessary, in the discretion of the Board
of Directors ("Directors") of the Corporation, in connection with the
qualification of the Shares for sale in such states (as well as the
District of Columbia, Puerto Rico and other territories) as the Distributor
may designate. The Distributor also agrees to pay all fees and related
expenses connected with its own qualification as a broker or dealer under
Federal or state laws and, except as otherwise specifically provided in
this Agreement or agreed to by the Corporation, all other expenses incurred
by the Distributor in connection with the sale of the Shares as
contemplated in this Agreement (including the expenses of qualifying the
Corporation as a dealer or broker under the laws of such states as may be
designated by the Distributor, if deemed necessary or advisable by the
Corporation).
4. PROSPECTUS AND OTHER INFORMATION. The Corporation represents and warrants
to and agrees with the Distributor that:
(a) The Registration Statement, including the Prospectus and Statement of
Additional Information, relating to the Shares has been filed under
both the Act and the Securities Act and has become effective.
(b) At all times during the term of this Agreement, except when the
officers of the Corporation have suspended or discontinued the sale
and issuance of the Shares of a Fund as contemplated by Section 2
hereof, the Registration Statement, Prospectus and Statement of
Additional Information will conform in all material respects to the
requirements of the Act and the rules and regulations of the
Securities and Exchange Commission, and none of such documents will
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not
apply to any statements or omissions in any of such documents based
upon written information furnished to the Corporation by the
Distributor specifically for use therein.
(c) The Corporation agrees to prepare and furnish to the Distributor from
time to time, a copy of the Prospectus, and authorizes the Distributor
to use such Prospectus, in the form furnished to the Distributor from
time to time, in connection with the sale of the Shares. The
Corporation also agrees to furnish the Distributor from time to time,
for use in connection with the sale of such Shares, such information
(including the Statement of Additional Information) with respect to
the Funds and the Shares as the Distributor may reasonably request.
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5. INDEMNIFICATION.
(a) The Corporation will indemnify and hold harmless the Distributor and
each person, if any, who controls the Distributor within the meaning
of the Act against any losses, claims, damages or liabilities to which
the Distributor or such controlling person may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, Prospectus or Statement
of Additional Information or any other written sales material prepared
by the Corporation or the Funds which is utilized by the Distributor
in connection with the sale of Shares of the Fund or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or (in the case of the
Registration Statement, Prospectus and Statement of Additional
Information) necessary to make the statement therein not misleading or
(in the case of such other sales material) necessary to make the
statements therein not misleading in the light of the circumstances
under which they were made; and will reimburse the Distributor and
each such controlling person for any legal or other expenses
reasonably incurred by the Distributor or such controlling person in
connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the Corporation
or the Funds will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, Prospectus or
Statement of Additional Information in conformity with written
information furnished to the Corporation by the Distributor
specifically for use therein; and PROVIDED, FURTHER, that nothing
herein shall be so construed as to protect the Distributor against any
liability to the Corporation or the Funds, or the security holders of
the Funds to which the Distributor would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence, in the
performance of its duties, or by reason of the reckless disregard by
the Distributor of its obligations and duties under this Agreement.
This indemnity provision will be in addition to any liability which
the Corporation may otherwise have.
(b) The Distributor will indemnify and hold harmless the Corporation, each
of its Directors and officers and each person, if any, who controls
the Corporation within the meaning of the Act, against any losses,
claims, damages or liabilities to which the Corporation or any such
Director, officer or controlling person may become subject under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, Prospectus or Statement
of Additional Information or any sales material not prepared by the
Corporation or the Funds which is utilized in connection with the sale
of the Shares or arise out of or are based upon the omissions or the
alleged omission to state therein a material fact required to be
stated therein or (in the case of the Registration Statement,
Prospectus and Statement) necessary to make the statements therein not
misleading or (in the case of such other sales material) necessary to
make the statements therein not misleading in the light of the
circumstances under which they were made, in the case of the
Registration Statement, Prospectus and Statement of Additional
Information to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in conformity with written information furnished to the
Corporation by the Distributor specifically for use therein; and the
Distributor will reimburse any legal or other expenses reasonably
incurred by the Corporation or any such Director, officer or
controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action. This indemnity
provision will be in addition to any liability which the Distributor
may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from liability which it may have to any
indemnified party otherwise than under this Section. In case any such
action is
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brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to
such indemnified party of its election to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
6. TERM OF AGREEMENT. This Agreement shall continue in full force and effect
for two years from the date hereof, and shall continue in full force and
effect from year to year thereafter if such continuance is approved in the
manner required by the Act, and the Distributor has not have notified the
Corporation in writing at least 60 days prior to the anniversary date of
the previous continuance that it does not desire such continuance. This
Agreement may be terminated at any time, without payment of penalty by the
Corporation on 60 days' written notice to the Distributor by vote of the
Directors of the Corporation or by vote of a majority of the outstanding
voting securities of the Corporation (as defined by the Act). This
Agreement shall automatically terminate in the event of its assignment (as
defined by the Act).
7. MISCELLANEOUS. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein to the
contrary notwithstanding, this Agreement shall not be construed to require
or to impose any duty upon either of the parties to do anything in
violation of any applicable laws or regulations.
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IN WITNESS WHEREOF, the Corporation and the Distributor have caused this
Agreement to be executed by their duly authorized officers as of the date above
written.
SUNAMERICA SENIOR FLOATING RATE FUND, INC.
By: ______________________________________
Xxxx X. Xxxxxx
Vice President and Assistant Secretary
SUNAMERICA CAPITAL SERVICES, INC.
By: ______________________________________
Name:
Title:
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