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Exhibit (d) (3)
OFFERING AGREEMENT
THIS OFFERING AGREEMENT, dated as of December 19, 1997 (the
"Agreement"), by and between XXX XXXXXX AMERICAN CAPITAL SENIOR FLOATING RATE
FUND (the "Fund"), a Massachusetts business trust, and XXX XXXXXX AMERICAN
CAPITAL DISTRIBUTORS, INC., a Delaware corporation (the "Principal
Underwriter").
1. (a) APPOINTMENT OF PRINCIPAL UNDERWRITER. The Fund
appoints the Principal Underwriter as a principal underwriter and exclusive
distributor of shares of the Fund (the "Shares") effective as of the date upon
which the continuous public offering of the Fund's Shares, as described in the
Fund's then current Prospectus, shall commence. The Fund reserves the right,
however, to refuse at any time or times to sell Shares hereunder for any reason
at any time or times to sell Shares hereunder for any reason deemed adequate by
the Board of Trustees of the Fund.
(b) BEST EFFORTS. The Principal Underwriter shall use its best
efforts to sell through its organization and through other dealers and agents
the Shares which the Principal Underwriter has the right to purchase under
Section 2 hereof, but the Principal Underwriter does not undertake to sell any
specific number of Shares. Without the prior approval of the Board of
Trustees, the Principal Underwriter shall not, directly or indirectly,
distribute, sell or market, through its organization or other brokers, dealers
or agents, shares of any investment companies unless the Board of Trustees of
the Fund determines that such companies do not compete, or potentially compete,
with the Fund.
(c) POSITIONS IN THE SHARES. The Principal Underwriter agrees
that it will not take any long or short positions in the Shares, except for
long positions in those Shares purchased by the Principal Underwriter in
accordance with any systematic sales plan described in the then current
Prospectus of the Fund and except as permitted by Section 2 hereof, and that so
far as it can control the situation, it will prevent any of its trustees,
officers or shareholders from taking any long or short positions in the Shares,
except for legitimate investment purposes.
(d) ESSENTIAL PERSONNEL. Commencing on the date of this
Agreement until May 31, 1998, the Principal Underwriter and the Fund agree that
the retention of (i) the chief executive officer, president, treasurer and
secretary of the Principal Underwriter, and (ii) each director, officer and
employee of the Principal Underwriter or any of its Affiliates (as defined in
the Investment Company Act of 1940, as amended (the "1940 Act")) who serves as
an officer of the Fund (each person referred to in (i) or (ii) hereinafter
being referred to as an "Essential Person"), in his or her current capacities,
is in the best interest of the Fund and the Fund's shareholders. In connection
with the Principal Underwriter's acceptance of employment hereunder, the
Principal Underwriter hereby agrees and covenants for itself and on behalf of
its Affiliates that neither the Principal Underwriter nor any of its Affiliates
shall replace or seek to replace any Essential Person or cause to be replaced
any Essential Person, in each case without first consulting with the Board of
Trustees of the Fund in a timely manner. In addition, neither the Principal
Underwriter nor any Affiliate of the Principal Underwriter, shall change or
seek to change or cause to be changed, in any material respect, the duties and
responsibilities of any Essential Person, in each case without first consulting
with the Board of Trustees of the Fund in a timely manner.
2. SALE OF SHARES TO PRINCIPAL UNDERWRITER; EARLY WITHDRAWAL
CHARGE. The Fund hereby grants to the Principal Underwriter the exclusive
right, except as herein otherwise provided, to purchase Shares upon the terms
herein set forth. Such exclusive right hereby granted shall not apply to
Shares issued or transferred or sold at net asset value: (a) in connection with
the merger or consolidation of the Fund with any other investment company or
the acquisition by the Fund of all or substantially all of the assets of or the
outstanding Shares of any investment company; (b) in connection with a pro rata
distribution directly to the holders of Shares in the nature of a stock
dividend or stock split or in connection with any other recapitalization
approved by the Board of Trustees; (c) upon the exercise of purchase or
subscription rights granted to the holders of Shares on a pro rata basis; or
(d) in connection with the automatic reinvestment of dividends and
distributions from the Fund.
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The Principal Underwriter shall have the right to buy from the Fund
the Shares needed, but not more than the Shares needed (except for reasonable
allowances for clerical errors, delays and errors of transmission and
cancellation of orders) to fill unconditional orders for Shares received by the
Principal Underwriter from dealers, agents and investors during each period
when a particular net asset value and public offering price are in effect as
provided in Section 3 hereof; and the price which the Principal Underwriter
shall pay for the Shares so purchased shall be the net asset value used in
determining the public offering price on which such orders were based. The
Principal Underwriter shall notify the Fund at the end of each such period, or
as soon thereafter on that business day as the orders received in such period
have been compiled, of the number of Shares which the Principal Underwriter
elects to purchase hereunder.
The Fund shall impose an early withdrawal charge, payable to the
Principal Underwriter, on most shares accepted for tender by the Fund which
have been held for less than five years, as set forth in the current Fund
Prospectus.
3. PUBLIC OFFERING PRICE. The public offering price per Share
shall be determined in accordance with the then current Prospectus of the Fund.
In no event shall the public offering price exceed the net asset value per
Share. The net asset value per Share shall be determined in the manner
provided in the Declaration of Trust and By-laws of the Fund as then amended
and in accordance with the then current Prospectus of the Fund. The Fund will
cause immediate notice to be given to the Principal Underwriter of each change
in net asset value as soon as it is determined. Compensation from the
Principal Underwriter to dealers purchasing Shares from the Principal
Underwriter for resale and to brokers and other eligible agents making sales to
investors shall be sent the forms of agreement between the Principal
Underwriter and such dealers or agents, respectively, as from time to time
amended, and, if such compensation from the Principal Underwriter is described
in the then current Prospectus for the Fund, shall be as so set forth. In
connection with the Principal Underwriter's employment hereunder, the Principal
Underwriter hereby agrees to distribute the Shares through brokers, dealers and
other agents of Xxxx Xxxxxx Distributors, Inc. on a "proprietary basis"
substantially identical to the distribution of shares of proprietary open-end
investment companies distributed by Xxxx Xxxxxx Distributors, Inc.
4. COMPLIANCE WITH NASD RULES, ETC. In selling Fund Shares, the
Principal Underwriter will in all respects duly comply with all state and
Federal laws relating to the sale of such securities and with all applicable
rules and regulations of all regulatory bodies, including, without limitation,
the Rules of Fair Practice of the National Association of Securities Dealers,
Inc., and all applicable rules and regulations of the Securities and Exchange
Commission under the 1940 Act, and will indemnify and save the Fund harmless
from any damage or expense on account of any unlawful act by the Principal
Underwriter or its agents or employees. The Principal Underwriter is not,
however, to be responsible for the acts of other dealers or agents except as
and to the extent that they shall be acting for the Principal Underwriter or
under its direction or authority. None of the Principal Underwriter, any
dealer, any agent or any other person is authorized by the Fund to give any
information or to make any representations, other than those contained in the
Registration Statement or Prospectus heretofore or hereafter filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "1933 Act") (as any such Registration Statement and Prospectus may have
been or may be amended from time to time), covering the Shares and in any
supplemental information to any such Prospectus approved by the Fund in
connection with the offer of sale of Shares. None of the Principal
Underwriter, any dealer, any broker or any other person is authorized to act as
agent for the Fund in connection with the offering or sale of Shares to the
public or otherwise. All such sales shall be made by the Principal Underwriter
as principal for its own account.
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5. EXPENSES.
(a) The Fund will pay or cause to be paid:
(i) all expenses in connection with the registration of Shares
under the Federal securities laws, and the Fund will exercise its best
efforts to obtain said registration and qualification;
(ii) all expenses in connection with the printing of any
notices of shareholders' meetings, proxy and proxy statements and
enclosures therewith, as well as any other notice or communication sent
to shareholders in connection with any meeting of the shareholders or
otherwise, any annual, semi-annual or other reports or communications
sent to the shareholders, and the expense of sending prospectuses
relating to the Shares to existing shareholders;
(iii) all expenses of any Federal or state original issue tax
or transfer tax payable upon the issuance, transfer or delivery of Shares
from the Fund to the Principal Underwriter; and
(iv) the costs of preparing and issuing any Share certificates
which may be issued to represent Shares.
(b) The Principal Underwriter will pay the costs and expenses of
qualifying and maintaining qualification of the Shares for sale under the
securities laws of the various states. The Principal Underwriter will also
permit its officers and employees to serve without compensation as trustees and
officers of the Fund if duly elected to such positions.
6. NO SECONDARY MARKET ACTIVITY. It is understood that Shares of
the Fund will not be repurchased by either the Fund or the Principal
Underwriter, and that no secondary market for the Fund shares exists currently,
or is expected to develop. While the Board of Trustees of the Fund intends to
consider tendering for all or a portion of the Fund's shares on a quarterly
basis, there is no assurance that the Fund will tender for shares at any time
or, following such a tender offer, that shares so tendered will be repurchased
by the Fund. Accordingly investment in the Fund's shares would be considered
illiquid. ANY REPRESENTATION AS TO A TENDER OFFER BY THE FUND, OTHER THAN THAT
WHICH IS SET FORTH IN THE FUND'S THEN CURRENT PROSPECTUS, IS EXPRESSLY
PROHIBITED.
The Principal Underwriter hereby covenants that it (i) will not make
a secondary market in any shares of the Fund, (ii) will not purchase or hold
such shares in inventory for the purpose of resale in the open market, (iii)
will not repurchase shares in the open market, and (iv) will require every bank,
broker or dealer participating in the continuous offering of the shares to make
the covenants contained in clauses (i), (ii) and (iii) of this Section 6 as a
condition precedent to their participation in such offering.
7. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless
the Principal Underwriter and each of its trustees and officers and each person,
if any, who controls the Principal Underwriter within the meaning of Section 15
of the 1933 Act against any loss, liability, claim, damages, or expenses
(including the reasonable cost of investigating or defending any alleged loss,
liability, claim, damages, or expenses and reasonable counsel fees incurred in
connection therewith), arising by reason of any person acquiring any Shares,
based upon the grounds that the registration statement, Prospectus, shareholder
reports or other information filed or made public by the Fund (as from time to
time amended), included an untrue statement of a material fact or omitted to
state a material fact required to be stated or necessary in order to make the
statements not misleading under the 1933 Act or any other statute or the common
law. However, the Fund does not agree to indemnify the Principal Underwriter or
hold it harmless to the extent that the statement or omission was made in
reliance upon, and in conformity with, information furnished to the Fund by or
on behalf of the Principal Underwriter. In no case (i) is the indemnity of the
Fund in favor of the Principal Underwriter or any person indemnified to be
deemed to protect the Principal Underwriter or any person against any liability
to the Fund or its security holders to
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which the Principal Underwriter or such person would otherwise by
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement, or (ii) is the Fund to be liable
under its indemnity agreement contained in this Section with respect to any
claim made against the Principal Underwriter or any other person unless the
Principal Underwriter or such other person shall have notified the Fund in
writing of the claim within a reasonable time after the summons or other first
written notification giving information of the nature of the claim shall have
been served upon the Principal Underwriter or any such person (or after the
Principal Underwriter or the person shall have received notice of service on
any designated agent). However, failure to notify the Fund of any claim shall
not relieve the Fund from any liability which it may have to the Principal
Underwriter or any person against whom such action is brought otherwise than on
account of its indemnity agreement contained in this paragraph. The Fund shall
be entitled to participate at its own expense in the defense, or, if it so
elects, to assume the defense of any such action brought to enforce any claims,
but if the Fund elects to assume the defense, the defense shall be conducted by
counsel chosen by it and satisfactory to the Principal Underwriter or officers
or trustees or controlling person or persons or defendant or defendants in the
suit. In the event the Fund elects to assume the defense of any suit and
retain counsel, the Principal Underwriter, officers or trustees or controlling
person or persons or defendant or defendants in the suit shall bear the fees
and expenses of any additional counsel retained by them. If the Fund does not
elect to assume the defense of any suit, it will reimburse the Principal
Underwriter, officers or trustees or controlling person or persons or defendant
or defendants in the suit for the reasonable fees and expenses of any counsel
retained by them. The Fund agrees to notify the Principal Underwriter promptly
of the commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of any of the
Shares.
The Principal Underwriter also covenants and agrees that it will
indemnify and hold harmless the Fund and each of its trustees and officers and
each person, if any, who controls the Fund within the meaning of Section 15 of
the 1933 Act, against any loss, liability, damages, claim or expense (including
the reasonable cost of investigating or defending any alleged loss, liability,
damages, claim or expense and reasonable counsel fees incurred in connection
therewith) arising by reason of any person acquiring any Shares, based upon the
1933 Act or any other statute or common law, alleging any wrongful act of the
Principal Underwriter or any of its employees or alleging that the registration
statement, Prospectus, shareholder reports or other information filed or made
public by the Fund (as from time to time amended), included an untrue statement
of a material fact or omitted to state a material fact required to be stated or
necessary in order to make the statements not misleading, insofar as the
statement or omission was made in reliance upon, and in conformity with
information furnished to the Fund by or on behalf of the Principal Underwriter.
In no case (i) is the indemnity of the Principal Underwriter in favor of the
Fund or any person indemnified to be deemed to protect the Fund or any such
person against any liability to which the Fund or such person would otherwise
be subject by reason of willful misfeasance, bad faith or gross negligence in
the performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement, or (ii) is the Principal
Underwriter to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Fund or any person
indemnified unless the Fund or person, as the case may be, shall have notified
the Principal Underwriter in writing of the claim within a reasonable time
after the summons or other first written notification giving information of the
nature of the claim shall have been served upon the Fund or person (or after
the Fund or such person shall have received notice of service on any designated
agent). However, failure to notify the Principal Underwriter of any claim
shall not relieve the Principal Underwriter from any liability which it may
have to the Fund or any person against whom the action is brought otherwise
than on account of its indemnity agreement contained in this paragraph. In the
case of any notice to the Principal Underwriter, it shall be entitled to
participate, at its own expense, in the defense or, if it so elects, to assume
the defense of any suit brought to enforce the claim, but if the Principal
Underwriter elects to assume the defense the defense shall be conducted by
counsel chosen by it and satisfactory to the Fund, to its officers and trustees
and to any controlling person or persons, defendant or defendants in the suit.
In the event that the Principal Underwriter elects to assume the defense of any
suit and retain counsel, the Fund or controlling persons or defendants in the
suit shall bear the fees and expenses of any additional counsel retained by
them. If the Principal Underwriter does not elect to assume the defense of any
suit, it will reimburse the Fund, officers and trustees or controlling
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person or persons or defendant or defendants in the suit for the reasonable fees
and expenses of any counsel retained by them. The Principal Underwriter agrees
to notify the Fund promptly of the commencement of any litigation or proceedings
against it in connection with the issue and sale of any of the Shares.
8. CONTINUATION, AMENDMENT OR TERMINATION OF THE AGREEMENT. This
Agreement shall become effective on the Effective Date and thereafter shall
continue in full force and effect from year to year so long as such continuance
is approved at least annually (i) by the Board of Trustees of the Fund or by a
vote of a majority of the outstanding voting securities of the Fund, and (ii) by
vote of a majority of the Trustees who are not parties to this Agreement or
interested persons in any such party (the "Disinterested Trustees") cast in
person at a meeting called for the purpose of voting on such approval, provided,
however, that (a) this Agreement may at any time be terminated without the
payment of any penalty either by vote of a majority of the Disinterested
Trustees, or by vote of a majority of the outstanding voting securities of the
Fund, on written notice to the Principal Underwriter; (b) this Agreement shall
immediately terminate in the event of its assignment; and (c) this Agreement may
be terminated by the Principal Underwriter on ninety (90) days' written notice
to the Fund. Upon termination of this Agreement, the obligations of the parties
hereunder shall cease and terminate as of the date of such termination, except
for any obligation to respond for a breach of this Agreement committed prior to
such termination and except with respect to any rights and obligations of
indemnification arising out of any action or inaction occurring prior to such
termination.
This Agreement may be amended at any time by mutual consent of the
parties, provided that such consent on the part of the Fund shall have been
approved (i) by the Board of Trustees of the Fund, or by a vote of the majority
of the outstanding voting securities of the Fund and (ii) by vote of a majority
of the Disinterested Trustees cast in person at a meeting called for the purpose
of voting on such amendment.
For purposes of this section, the terms "vote of a majority of the
outstanding voting securities," "interested person" and "assignment" shall have
the meanings defined in the 1940 Act, as amended.
9. DISCLAIMER LIABILITY. Notwithstanding anything to the contrary
contained in this Agreement, you acknowledge and agree that, as provided by
Section 5.5 of the Declaration of Trust of the Fund, the shareholders, trustees,
officers, employees and other agents of the Fund shall not personally be bound
by or liable hereunder, nor shall any resort to their personal property being
had for the satisfaction of any obligation or claim hereunder.
10. NOTICE. Any notice given under this Agreement shall be given in
writing, addressed and delivered, or mailed postpaid, to the other party at any
office of such party or at such other address as such party shall have
designated in writing.
11. NAME. In connection with its employment hereunder, the
Principal Underwriter hereby agrees and covenants not to change its name without
the prior consent of the Board of Trustees.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
to be executed on their behalf on the day and year first above written.
XXX XXXXXX AMERICAN CAPITAL
SENIOR FLOATING RATE FUND
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: President
XXX XXXXXX AMERICAN CAPITAL
DISTRIBUTORS INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
