===========================================================================
As filed with the Securities and Exchange Commission on September 28, 1995
Registration No. 33-62405
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SunAmerica Inc. Maryland 86-0176061
SunAmerica Capital Trust II Delaware 95-6994849
SunAmerica Capital Trust III Delaware 95-6994850
SunAmerica Capital Trust IV Delaware 95-6994851
(Exact name of (State or other (I.R.S. employer
registrant as jurisdiction of identification
specified in incorporation or number)
its charter) organization)
1 SunAmerica Center,
Los Angeles, California 90067-6022
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
Susan L. Harris, Esq.
Vice President and
General Counsel -- Corporate Affairs
SunAmerica Inc.
1 SunAmerica Center
Los Angeles, California 90067-6022
(310) 772-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
David W. Ferguson, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
Approximate date of commencement of proposed sale to the public: From
time to time after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities being offered only in
connection with dividend or interest reinvestment plans, please check
the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ________
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
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<CAPTION>
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to Offering Price Aggregate Registration
Securities to be Registered be Registered (1)(2) Per Unit(3) Offering Price Fee(4)
--------------------------- -------------------- ---------------- ---------------- ------------
<S> <C> <C> <C> <C>
Senior debt securities, subordinated debt
securities and junior subordinated debt
securities (collectively, "Debt Securities")
of SunAmerica Inc. ..................................
Warrants of SunAmerica to purchase debt securities.....
Warrants of SunAmerica to purchase preferred stock
or depository shares
Warrants of SunAmerica to purchase common stock........
Preferred Stock of SunAmerica Inc. ....................
Depositary Shares of SunAmerica Inc. ..................
Common Stock of SunAmerica Inc. .......................
Preferred Securities of SunAmerica Capital Trust II ... $1,000,000,000 100% $1,000,000,000 $344,827.59
Preferred Securities of SunAmerica Capital Trust III...
Preferred Securities of SunAmerica Capital Trust IV....
Guarantees of Preferred Securities of SunAmerica Capital
Trust II, SunAmerica Capital Trust III and SunAmerica
Captial Trust IV by SunAmerida Inc.(5)................
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</TABLE>
(footnotes on following page)
____________
(1) Such indeterminate number or amount of Debt Securities, Warrants,
Preferred Stock Depositary Shares and Common Stock of SunAmerica and
Preferred Securities of SunAmerica Capital Trust II, SunAmerica Capital
Trust III and SunAmerica Capital Trust IV as may from time to time be
issued at indeterminate prices. Junior Subordinated Debt Securities
may be issued and sold to SunAmerica Capital Trust II, SunAmerica
Capital Trust III and SunAmerica Capital Trust IV, in which event such
junior subordinated debt securities may later be distributed to the
holders of Preferred Securities upon a dissolution of SunAmerica
Capital Trust II, SunAmerica Capital Trust III and SunAmerica Capital
Trust IV and the distribution of the assets thereof.
(2) Such amount in U.S. dollars or the equivalent thereof in foreign
currencies as shall result in an aggregate initial offering price for
all securities of $1,000,000,000. The Prospectuses herein cover
$1,000,000,000 of securities. In addition, this Registration Statement
includes such presently indeterminate number of Securities (as defined
herein) as may be issuable from time to time upon conversion or
exchange of the Securities being registered hereunder.
(3) Estimated solely for the purpose of calculating the registration fee
and exclusive of accrued interest and dividends, if any.
(4) Previously paid.
(5) No separate consideration will be received for any Guarantee.
The Registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this registration statement shall thereafter become effective in accordance
with section 8(a) of the Securities Act of 1933 or until the registration
statement shall become effective on such date as the Commission, acting
pursuant to said section 8(a), may determine.
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EXPLANATORY NOTE
This Registration Statement contains two forms of prospectuses to be
used in connection with offerings of the following securities:
(1) Debt Securities (both senior and subordinated), Preferred Stock (or
depositary shares representing Preferred Stock) and Common Stock of
SunAmerica Inc. and Warrants of SunAmerica Inc. to purchase any of the
foregoing.
(2) Preferred Securities of SunAmerica Capital Trust II, SunAmerica Capital
Trust III and SunAmerica Capital Trust IV, severally, Junior
Subordinated Debentures of SunAmerica Inc. and Guarantees by SunAmerica
Inc. of Preferred Securities issued by a SunAmerica Capital Trust.
Each offering of securities made under this Registration Statement will
be made pursuant to one of these Prospectuses, with the specific terms of the
securities offered thereby set forth in an accompanying Prospectus Supplement.
SUBJECT TO COMPLETION, DATED SEPTEMBER 28, 1995
[LOGO]
PROSPECTUS
SUNAMERICA INC.
Debt Securities
Preferred Stock
Common Stock
Warrants
SunAmerica Inc. (the "Company") may offer and sell from time to time (i)
its unsecured debt securities ("Debt Securities"), (ii) shares of its
preferred stock, without par value (the "Preferred Stock"), which may be
represented by depositary shares as described herein, (iii) shares of its
common stock, par value $1.00 per share (the "Common Stock") or (iv)
warrants to purchase Debt Securities, Preferred Stock and Common Stock, the
"Warrants"). The Debt Securities, Preferred Stock, Common Stock and
Warrants are herein collectively referred to as the "Securities". The
Securities may be offered in one or more separate classes or series, in
amounts, at prices and on terms to be determined by market conditions at
the time of sale and to be set forth in a supplement or supplements to this
Prospectus (a "Prospectus Supplement"). Securities may be sold for U.S.
dollars, foreign denominated currency or currency units; amounts payable
with respect to any Securities may likewise be payable in U.S. dollars,
foreign denominated currency or currency units -- in each case, as the
Company specifically designates. By separate prospectus, the form of which
is included in the Registration Statement of which this Prospectus forms a
part, three Delaware statutory business trusts (the "Trusts") which are
wholly owned subsidiaries of the Company, may from time to time severally
offer Preferred Securities guaranteed by the Company to the extent set
forth therein and the Company may offer from time to time Junior
Subordinated Debt Securities either directly or to a Trust. The aggregate
initial public offering price of the securities to be offered by this
Prospectus and such other prospectus shall not exceed $1,000,000,000.
An accompanying Prospectus Supplement will set forth certain terms of
any Debt Securities in respect of which this Prospectus is being delivered,
including, where applicable, the ranking as senior or subordinated Debt
Securities, the specific designation, aggregate principal amount, purchase
price, maturity, interest rate (or manner of calculation thereof), time of
payment of interest (if any), listing (if any) on a securities exchange,
authorized denomination, any exchangeability, conversion, redemption,
prepayment or sinking fund provisions, the currency or currencies or currency
unit or units in which principal, premium, if any, or interest is payable and
any other specific terms of the Debt Securities. An accompanying Prospectus
Supplement will set forth certain terms of any Preferred Stock in respect of
which this Prospectus is being delivered, including the specific designation,
number of shares, purchase price and the rights, preferences and privileges
thereof and any qualifications or restrictions thereon (including dividends,
liquidation value, voting rights, terms for the redemption, conversion or
exchange thereof and any other specific terms of the Preferred Stock), listing
(if any) on a securities exchange and whether the Company has elected to offer
the Preferred Stock in the form of depositary shares. An accompanying
Prospectus Supplement will set forth certain terms of any Common Stock in
respect of which this Prospectus is being delivered, including the number of
shares offered, the initial offering price, market price and dividend
information. An accompanying Prospectus Supplement will set forth certain
terms of any Warrants in respect of which this Prospectus is being delivered,
including the specific designation, the number, purchase price and terms
thereof, any listing of the Warrants or the underlying Securities on a
securities exchange or any other terms in connection with the offering, sale
and exercise of the Warrants, as well as the terms on which and the Securities
for which such Warrants may be exercised.
--------------
The Company may sell the Securities directly, through agents designated
from time to time or through underwriters or dealers. See "Plan of
Distribution" below. If any agents of the Company or any underwriters or
dealers are involved in the sale of the Securities, the names of such agents,
underwriters or dealers and any applicable commissions and discounts will be
set forth in any related Prospectus Supplement. The managing underwriter or
underwriters with respect to each series sold to or through underwriters will
be named in the accompanying Prospectus Supplement. See "Plan of
Distribution" for possible indemnification arrangements for dealers,
underwriters and agents.
--------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1995.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information filed by the Company with the
Commission can be inspected and copied at the Commission's Public Reference
Room at 450 Fifth Street, N.W., Washington, D.C. 20549, or at the public
reference facilities of the regional offices in Chicago and New York. The
addresses of these regional offices are as follows: 500 West Madison Street,
Chicago, Illinois 60661, and 7 World Trade Center, 13th Floor, New York, New
York 10048. Copies of such material also can be obtained by mail from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington D.C. 20549, upon payment of the fees prescribed by the rules and
regulations of the Commission. Reports, proxy statements, and other
information concerning the Company may also be inspected at the offices of the
New York Stock Exchange, Inc. at 20 Broad Street, New York, New York 10005 and
at the offices of the Pacific Stock Exchange at 301 Pine Street, San
Francisco, California 94104. The Company's Common Stock is listed on both
exchanges.
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the securities offered by this Prospectus. This Prospectus
does not contain all the information set forth in the Registration Statement
and exhibits thereto. In addition, certain documents filed by the Company
with the Commission have been incorporated in this Prospectus by reference.
See "Incorporation of Certain Documents by Reference." Statements contained
herein concerning the provisions of any document do not purport to be complete
and, in each instance, are qualified in all respects by reference to the copy
of such document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission. Each such statement is subject to and
qualified in its entirety by such reference. For further information with
respect to the Company and the securities offered hereby, reference is made to
the Registration Statement, including the exhibits thereto, and the documents
incorporated herein by reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in the Prospectus the
following documents previously filed by the Company with the Commission
pursuant to the 1934 Act:
1. Annual Report on Form 10-K for the fiscal year ended September 30,
1994.
2. Quarterly Reports on Form 10-Q for the quarters ended December 31,
1994, March 31, 1995 and June 30, 1995.
3. Current Reports on Form 8-K filed on November 14, 1994, January
24, 1995, April 25, 1995, May 26, 1995, July 14, 1995, July 28,
1995 and September 6, 1995.
All documents filed by the Company pursuant to Section 13(a), 13(c) 14
or 15(d) of the 1934 Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the securities offered hereby shall be
deemed to be incorporated by reference in the Prospectus and to be part hereof
from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner to whom this Prospectus is delivered, upon the written or
oral request of such person, a copy of any and all of the information that has
been incorporated by reference in the Prospectus (not including exhibits to
the information that is incorporated by reference unless such exhibits are
specifically incorporated by reference into the information that this
Prospectus incorporates). Requests for such document shall be directed to
SunAmerica Inc., 1 SunAmerica Center, Los Angeles, California 90067-6022,
Attention: Vice President, Investor Relations (telephone (310) 772-6000).
For North Carolina Investors: The Commissioner of Insurance of the
State of North Carolina has not approved or disapproved this offering nor has
such Commissioner passed upon the accuracy or adequacy of this Prospectus.
No dealer, salesman or other individual has been authorized to give any
information or to make any representations not contained in this Prospectus in
connection with the offering covered by this Prospectus. If given or made,
such information or representations must not be relied upon as having been
authorized by the Company or any underwriter, dealer or agent. This Prospectus
does not constitute an offer to sell, or a solicitation of an offer to buy,
any securities other than the registered securities to which it relates in any
jurisdiction where, or to any person to whom, it is unlawful to make such
offer or solicitation. Neither the delivery of this Prospectus nor any sale
made hereunder shall, under any circumstances, create any implication that
there has not been any change in the facts set forth in this Prospectus or in
the affairs of the Company since the date hereof.
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$," "dollars" or
"U.S.$").
THE COMPANY
The Company is a diversified financial services company specializing in
retirement savings products and services. At June 30, 1995, the Company held
$27 billion of assets throughout its businesses, including $16.20 billion of
assets on its balance sheet, $2.08 billion of assets managed in mutual funds
and private accounts and $8.76 billion under custody in retirement trust
accounts. Together, the Company's life insurance companies rank among the
largest U.S. issuers of annuities. Complementing these annuity operations are
the Company's asset management operations; its two broker-dealers, which the
Company believes, based on industry data, represent the largest network of
independent registered representatives in the nation; and its trust company,
which provides administrative and custodial services to qualified retirement
plans. Through these subsidiaries, the Company specializes in the sale of
tax-deferred long-term savings products and investments to the expanding
preretirement savings market. The Company markets fixed annuities and
fee-generating variable annuities, mutual funds and trust services, as well as
guaranteed investment contracts. The Company's products are distributed
through a broad spectrum of financial services distribution channels,
including independent registered representatives of the Company's
broker-dealer subsidiaries and unaffiliated broker-dealers, independent
general insurance agents and financial institutions.
The principal executive offices of the Company are located at 1
SunAmerica Center, Los Angeles, California 90067-6022, telephone number (310)
772-6000.
RECENT DEVELOPMENTS
On September 20, 1995, the Company, wholly owned subsidiary, Anchor
National Life Insurance Company, had signed a definitive agreement to
acquire CalFarm Life Insurance Company ("CalFarm Life") from its parent,
Zenith National Insurance Corp., for approximately $120 million in cash.
Completion of the acquisition, expected by year-end 1995, is subject to
receipt of normal regulatory approvals and other customary terms and
conditions. CalFarm Life is headquartered in Sacramento, California and
currently markets a range of life and health insurance and annuity
products, specializing in the qualified 403(b) market for teachers and
other non-profit organizations. At June 30, 1995, CalFarm Life had
approximately $739 million in annuity and life reserves, and approximately
$2.8 billion of life insurance in force. Under terms of the agreement,
Zenith National will retain the company's health insurance business.
On September 11, 1995, the Company's Board of Directors approved for
submission to shareholder vote an amendment to the Articles of Incorporation
to increase the Company's authorized capital from (i) 50,000,000 to
175,000,000 shares of Common Stock and (ii) 15,000,000 to 25,000,000 shares of
Class B Stock. The Company has scheduled a special shareholders' meeting on
October 30, 1995 (for shareholders of record as of September 21, 1995) for
consideration of the proposed increase in authorized capital stock. On
September 11, 1995, the Board of Directors also approved a three-for-two stock
split, to be effected in the form of a stock dividend, of its outstanding
Common Stock and Class B Stock, contingent upon shareholder approval of the
proposed increase in authorized capital stock.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the
net proceeds from the sale of the Securities are expected to be used for
general corporate purposes, including repayment or redemption of outstanding
debt or preferred stock, the possible acquisition of financial services
businesses or assets thereof, investments in portfolio assets and working
capital needs. The Company routinely reviews opportunities to acquire
financial services businesses or assets thereof.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the consolidated ratios of earnings to
fixed charges and earnings
to combined fixed charges and preferred stock dividends for the Company for
the periods indicated:
<TABLE>
<CAPTION> Nine months ended
June 30,
Years ended September 30, (unaudited)
---------------------------------------------------- -------------------------
1990 1991 1992 1993 1994 1994 1995
------- ------- ------- ------- ------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges
(excluding interest incurred on
reserves and trust deposits)(1) 2.4x 2.7x 4.0x 6.1x 5.8x 5.9x 5.8x
Ratio of earnings to fixed charges
(including interest incurred on
reserves and trust deposits)(2) 1.1x 1.1x 1.2x 1.4x 1.5x 1.5x 1.5x
Ratio of earnings to combined
fixed charges and preferred stock
dividends (excluding interest
incurred on reserves and trust
deposits)(3) 2.0x 2.3x 2.7x 2.8x 2.8x 2.8x 3.3x
Ratio of earnings to combined
fixed charges and preferred stock
dividends (including interest
incurred on reserves and trust
deposits)(4) 1.1x 1.1x 1.2x 1.3x 1.4x 1.4x 1.4x
</TABLE>
___________
(1) In computing the ratio of earnings to fixed charges (excluding interest
incurred on reserves and trust deposits), fixed charges consist of
interest expense on senior and subordinated indebtedness and dividends
on the preferred securities of a subsidiary grantor trust. Earnings are
computed by adding interest incurred on senior and subordinated
indebtedness and dividends paid on the preferred securities of a
subsidiary grantor trust to pretax income.
(2) In computing the ratio of earnings to fixed charges (including interest
incurred on reserves and trust deposits), fixed charges consist of
interest expense on senior and subordinated indebtedness, fixed annuity
contracts, guaranteed investment contracts and trust deposits, and
dividends on the preferred securities of a subsidiary grantor trust.
Earnings are computed by adding interest incurred on senior and
subordinated indebtedness, fixed annuity contracts, guaranteed investment
contracts and trust deposits, and dividends paid on the preferred
securities of a subsidiary grantor trust to pretax income.
(3) In computing the ratio of earnings to combined fixed charges and
preferred stock dividends (excluding interest incurred on reserves and
trust deposits), combined fixed charges and preferred stock dividends
consist of interest expense on senior and subordinated indebtedness,
dividends on the preferred securities of a subsidiary grantor trust and
dividends on preferred stock of the Company on a tax equivalent basis.
Earnings are computed by adding interest incurred on senior and
subordinated indebtedness and dividends paid on the preferred securities
of a subsidiary grantor trust to pretax income.
(4) In computing the ratio of earnings to combined fixed charges and
preferred stock dividends (including interest incurred on reserves and
trust deposits), combined fixed charges and preferred stock dividends
consist of interest expense on senior and subordinated indebtedness,
fixed annuity contracts, guaranteed investment contracts and trust
deposits; dividends on the preferred securities of a subsidiary grantor
trust; and dividends on preferred stock of the Company on a tax
equivalent basis. Earnings are computed by adding interest incurred on
senior and subordinated indebtedness, fixed annuity contracts,
guaranteed investment contracts and trust deposits and dividends paid on
the preferred securities of a subsidiary grantor trust to pretax income.
DESCRIPTION OF DEBT SECURITIES
The Company's unsecured Debt Securities, consisting of notes, debentures
or other evidences of indebtedness, may constitute either senior Debt
Securities ("Senior Debt Securities") or subordinated Debt Securities
("Subordinated Debt Securities") of the Company and will be issued in the case
of Senior Debt Securities, under a Senior Indenture dated as of April 15, 1993
(the "Senior Debt Indenture") between the Company and The First National Bank
of Chicago, as Trustee, and in the case of Subordinated Debt Securities, under
a Subordinated Indenture dated as of April 15, 1993 (the "Subordinated Debt
Indenture") between the Company and The First National Bank of Chicago, as
Trustee. The Senior Debt Indenture and the Subordinated Debt Indenture are
sometimes hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures". The First National Bank of Chicago, in its
capacity as trustee under either or both of the Indentures, is referred to
hereinafter as the "Trustee." The Indentures are included as exhibits to the
Registration Statement of which this Prospectus is a part. The following
description summarizes the material terms of the Indentures and the Debt
Securities and is qualified in its entirety by reference to the detailed
provisions of the applicable Indenture, which contains the full text of such
provisions, including the definition of certain terms used herein, and for
other information regarding the Debt Securities. Numerical references in
parentheses below are to sections in the applicable Indenture. Wherever
particular sections or defined terms of the applicable Indenture are referred
to, such sections or defined terms are incorporated herein by reference as
part of the statement made, and the statement is qualified in its entirety by
such reference. The indentures are substantially identical except for
provisions relating to subordination and the Company's negative pledge and
restrictions on certain dispositions. Any Debt Securities offered by this
Prospectus and the accompanying Prospectus Supplement are referred to herein
as the "Offered Debt Securities".
General
Neither of the Indentures limits the amount of additional indebtedness
the Company or any of its subsidiaries may incur. The Debt Securities will be
unsecured senior or subordinated obligations of the Company. Since the
Company is a holding company, the Company's rights and the rights of its
creditors, including the holders of Debt Securities, to participate in the
assets of any subsidiary upon the latter's liquidation or recapitalization
will be subject to the prior claims of the subsidiary's creditors, except to
the extent that the Company may itself be a creditor with recognized claims
against the subsidiary. Claims on the Company's subsidiaries by creditors
other than the Company include substantial claims for policy benefits and debt
obligations, as well as other liabilities incurred in the ordinary course of
business. In addition, since many of the Company's subsidiaries are insurance
companies subject to regulatory control by various state insurance
departments, the ability of such subsidiaries to pay dividends or make loans
or advances to the Company without prior regulatory approval is limited by
applicable laws and regulations.
The Indentures do not limit the amount of Debt Securities that may be
issued and provide that Debt Securities may be issued from time to time in one
or more series and may be denominated and payable in foreign currencies or
units based on or related to foreign currencies, including European Currency
Units. Special United States federal income tax considerations applicable to
any Debt Securities so denominated are described in the relevant Prospectus
Supplement.
Reference is made to the applicable Prospectus Supplement for the
following terms of and information relating to the Offered Debt Securities
offered thereby (to the extent such terms are applicable to such Debt
Securities): (i) classification as senior or subordinated Debt Securities,
the specific designation, aggregate principal amount, purchase price and
denomination; (ii) currency or units based on or relating to currencies in
which the Offered Debt Securities are denominated and/or in which
principal, premium, if any, and/or any interest will or may be payable;
(iii) any date of maturity; (iv) interest rate or rates (or the method by
which such rate will be determined), if any; (v) the dates on which any
such interest will be payable; (vi) the place or places where the
principal of, premium, if any, and interest, if any, on the Offered Debt
Securities will be payable; (vii) any redemption, repayment or sinking
fund provisions; (viii) whether, in the case of Subordinated Debt
Securities, such Offered Debt Securities are convertible into Common Stock
of the Company; (ix) whether the Offered Debt Securities will be issuable
in registered form ("Registered Debt Securities") or bearer form ("Bearer
Debt Securities") or both and, if Bearer Debt Securities are issuable, any
restrictions applicable to the place of payment of any principal of,
premium, if any, and interest on such Bearer Debt Securities, to the
exchange of one form for another and to the offer, sale and delivery of
such Bearer Debt Securities (except that under current United States
federal income tax law, Registered Debt Securities will not be exchangeable
into Bearer Debt Securities); (x) any applicable United States federal
income tax consequences, including whether and under what circumstances the
Company will pay additional amounts on Offered Debt Securities held by a
person who is not a U.S. person (as hereinafter defined) in respect of any
tax, assessment or governmental charge withheld or deducted and, if so,
whether the Company will have the option to redeem such Debt Securities
rather than pay such additional amounts; (xi) the proposed listing, if
any, of the Offered Debt Securities on any securities exchange; and (xii)
any other specific terms of the Offered Debt Securities, including any
modifications of or additions to the events of default or covenants
provided for with respect to such Debt Securities, and any terms which may
be required by or advisable under applicable laws or regulations not
inconsistent with the applicable Indenture.
Debt Securities may be presented for exchange and Registered Debt
Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the Debt Securities and the
Prospectus Supplement. Such services will be provided without charge, other
than any tax or other governmental charge payable in connection therewith, but
subject to the limitations provided in the applicable Indenture. Debt
Securities in bearer form and the coupons, if any, appertaining thereto will
be transferable by delivery.
Debt Securities will bear interest at a fixed rate or a floating rate.
Debt Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate will be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes are described in the
relevant Prospectus Supplement.
Debt Securities may be issued, from time to time, with the principal
amount payable on any principal payment date, or the amount of interest
payable on any interest payment date, to be determined by reference to one or
more currency exchange rates, commodity prices, equity indices or other
factors. Holders of such Debt Securities may receive a principal amount on
any principal payment date, or a payment of interest on any interest payment
date, that is greater than or less than the amount of principal or interest
otherwise payable on such dates, depending upon the value on such dates of the
applicable currency, commodity, equity index or other factor. Information as
to the methods for determining the amount of principal or interest payable on
any date, the currencies, commodities, equity indices or other factors to
which the amount payable on such date is linked and certain additional tax
considerations will be set forth in the applicable Prospectus Supplement.
Global Debt Securities
The registered Debt Securities of a series may be issued in the form of
one or more fully registered global Securities (a "Registered Global
Security") that will be deposited with a depositary (a "Depositary") or with a
nominee for a Depositary identified in the Prospectus Supplement relating to
such series and registered in the name of the Depositary or a nominee thereof.
In such case, one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding registered Debt Securities of the series to be
represented by such Registered Global Security or Securities. Unless and
until it is exchanged in whole for Debt Securities in definitive registered
form, a Registered Global Security may not be transferred except as a whole by
the Depositary for such Registered Security to a nominee of such Depositary or
by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor of such
Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered
Global Security will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will apply
to all depositary arrangements.
Ownership of beneficial interests in a Registered Global Security will
be limited to persons that have accounts with the Depositary for such
Registered Global Security ("participants") or persons that may hold interests
through participants. Upon the issuance of a Registered Global Security, the
Depositary for such Registered Global Security will credit, on its book-entry
registration and transfer system, the participant's accounts with the
respective principal amounts of the Debt Securities represented by such
Registered Global Security beneficially owned by such participants. The
accounts to be credited shall be designated by any dealers, underwriters or
agents participating in the distribution of such Debt Securities. Ownership
of beneficial interests in such Registered Global Security will be shown on,
and the transfer of such ownership interests will be effected only through,
records maintained by the Depositary for such Registered Global Security (with
respect to interests of participants) and on the records of participants (with
respect to interests of persons holding through participants). The laws of
some states may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to own, transfer or pledge beneficial interests in
Registered Global Securities.
So long as the Depositary for a Registered Global Security, or its
nominee, is the registered owner of such Registered Global Security, such
Depositary or such nominee, as the case may be, will be considered the sole
owner or holder of the Debt Securities represented by such Registered Global
Security for all purposes under the applicable Indenture. Except as set forth
below, owners of beneficial interests in a Registered Global Security will not
be entitled to have the Debt Securities represented by such Registered Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the applicable Indenture.
Accordingly, each person owning a beneficial interest in a Registered Global
Security must rely on the procedures of the Depositary for such Registered
Global Security and, if such person is not a participant, on the procedures of
the participant through which such person owns its interest, to exercise any
rights of a holder under the applicable Indenture. The Company understands
that under existing industry practices, if the Company requests any action of
holders or if an owner of a beneficial interest in a Registered Global
Security desires to give or take any action which a holder is entitled to give
or take under the applicable Indenture, the Depositary for such Registered
Global Security would authorize the participants holding the relevant
beneficial interests to give or take such action, and such participants would
authorize beneficial owners owning through such participants to give or take
such action or would otherwise act upon the instructions of beneficial owners
holding through them.
Payments of principal and premium, if any, and interest, if any, of Debt
Securities represented by a Registered Global Security registered in the name
of a Depositary or its nominee will be made to such Depositary or its nominee,
as the case may be, as the registered owners of such Registered Global
Security. None of the Company, the Trustee or any other agent of the Company
or agent of the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in such Registered Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal, premium or interest in respect of such Registered Global
Security, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in such
Registered Global Security as shown on the records of such Depositary. The
Company also expects that payments by participants to owners of beneficial
interests in such Registered Global Security held through such participants
will be governed by standing customer instructions and customary practices,
as is now the case with the securities held for the accounts of customers
in bearer form or registered in "street name", and will be the
responsibility of such participants.
If the Depositary for any Debt Securities represented by a Registered
Global Security is at any time unwilling or unable to continue as Depositary
or ceases to be a clearing agency registered under the 1934 Act, and a
successor Depositary registered as a clearing agency under the 1934 Act is not
appointed by the Company within 90 days, the Company will issue such Debt
Securities in definitive form in exchange for such Registered Global Security.
In addition, the Company may at any time and in its sole discretion determine
not to have any of the Debt Securities of a series represented by one or more
Registered Global Securities and, in such event, will issue Debt Securities of
such series in a definitive form in exchange for all of the Registered Global
Security or Securities representing such Debt Securities. Any Debt Securities
issued in definitive form in exchange for a Registered Global Security will be
registered in such name or names as the Depositary shall instruct the Trustee.
It is expected that such instructions will be based upon directions received
by the Depositary from participants with respect to ownership of beneficial
interests in such Registered Global Security.
Bearer Debt Securities of a series may also be issued in the form of one
or more global Securities (a "Bearer Global Security") that will be deposited
with a common depositary for Euro-clear and CEDEL, or with a nominee for such
depositary identified in the Prospectus Supplement relating to such series.
The specific terms and procedures, including the specific terms of the
depositary arrangement and any specific procedures for the issuance of Debt
Securities in definitive form in exchange for a Bearer Global Security, with
respect to any portion of a series of Debt Securities to be represented by a
Bearer Global Security will be described in the Prospectus Supplement relating
to such series.
Senior Debt
Payment of the principal of, premium, if any, and interest on Debt
Securities issued under the Senior Debt Indenture will rank pari passu with
all other unsecured and unsubordinated debt of the Company.
Subordinated Debt
Subordination. Payment of the principal of, premium, if any, and
interest on Debt Securities issued under the Subordinated Debt Indenture
will be subordinate and junior in right of payment, to the extent and in the
manner set forth in the Subordinated Debt Indenture, to all "Senior
Indebtedness" of the Company. The Subordinated Debt Indenture defines "Senior
Indebtedness" as the principal of and premium, if any, and interest on (a) all
indebtedness of the Company, whether outstanding on the date of the
Subordinated Debt Indenture or thereafter created, (i) for money borrowed by
the Company, (ii) for money borrowed by, or obligations of, others and either
assumed or guaranteed, directly or indirectly, by the Company, (iii) in
respect of letters of credit and acceptances issued or made by banks, or (iv)
constituting purchase money indebtedness, or indebtedness secured by property
included in the property, plant and equipment accounts of the Company at the
time of the acquisition of such property by the Company, for the payment of
which the Company is directly liable, and (b) all deferrals, renewals,
extensions and refundings of, and amendments, modifications and supplements
to, any such indebtedness. As used in the preceding sentence the term
"purchase money indebtedness" means indebtedness evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or
other security interest) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, unless by its terms such indebtedness is
subordinate to other indebtedness of the Company. Notwithstanding anything to
the contrary in the Subordinated Debt Indenture or the Subordinated Debt
Securities, Senior Indebtedness shall not include, (i) any indebtedness of the
Company which, by its terms or the terms of the instrument creating or
evidencing it, is subordinate in right of payment to or pari passu with the
Subordinated Debt Securities or (ii) any indebtedness of the Company to a
subsidiary of the Company. (Subordinated Debt Indenture, Section 1.1). The
Subordinated Indenture does not contain any limitation on the amount of Senior
Indebtedness that can be incurred by the Company. Indebtedness issued or to
be issued pursuant to the Indenture dated March 15, 1995 between the Company
and The First National Bank of Chicago, as Trustee, providing for the issuance
of junior subordinated indebtedness of the Company is subordinate in right of
payment to the Subordinated Debt Securities. As of the date of this
Prospectus, approximately $54.3 million principal amount of 9.95% junior
subordinated debentures due 2044 are outstanding under such Indenture.
In the event (a) of any insolvency or bankruptcy proceedings, or any
receivership, liquidation, reorganization or other similar proceedings in
respect of the Company or its property, or (b) that Subordinated Debt
Securities of any series are declared and payable before their expressed
maturity because of the occurrence of an Event of Default pursuant to
Section 5.1 of the Subordinated Debt Indenture (under circumstances other
than as set forth in clause (a) above), then the holders of all Senior
Indebtedness shall first be entitled to receive payment of the full amount
due thereon in money or money's worth, before the holders of any of such
Subordinated Debt Securities or coupons appertaining thereto are entitled
to receive a payment on account of the principal of, premium, if any, or
interest on the indebtedness evidenced by such Subordinated Debt Securities
or of such coupons appertaining thereto. In the event and during the
continuation of any default in payment of any Senior Indebtedness or if any
event of default shall exist under any Senior Indebtedness, as "event of
default" is defined therein or in the agreement under which the same is
outstanding, no payment of the principal or interest on the Subordinated
Debt Securities or coupons shall be made. (Subordinated Debt Indenture,
Article 13) If this Prospectus is being delivered in connection with a
series of Subordinated Debt Securities, the accompanying Prospectus
Supplement will set forth the approximate amount of Senior Indebtedness
outstanding as of the end of the most recent fiscal quarter.
Conversion Rights. The terms and conditions, if any, on which
Subordinated Debt Securities are convertible into Common Stock of the Company
will be set forth in the prospectus supplement relating thereto. Such terms
will include the conversion price, the conversion period, provisions as to
whether conversion will be at the option of the holder or the Company, the
events requiring an adjustment of the conversion price and provisions
affecting conversion in the event of the redemption of the convertible
Subordinated Debt Securities; and such terms may include provisions under
which the number of shares of Common Stock to be received by the holders of
the Subordinated Debt Securities would be calculated according to the market
price of the Common Stock as of a time stated in the prospectus supplement.
Certain Covenants of the Company
Limitations on Liens. The Senior Debt Indenture provides that the
Company and its Restricted Subsidiaries (as defined below) may not issue,
assume, incur or guarantee any indebtedness for borrowed money secured by a
mortgage, pledge, lien or other encumbrance (except for certain liens
specifically permitted by the Senior Debt Indenture), directly or indirectly,
upon any shares of the Voting Stock (as defined in the Senior Debt Indenture)
of a Restricted Subsidiary which shares are owned by the Company or its
Restricted Subsidiaries without effectively providing that the Debt Securities
issued under the Senior Debt Indenture (and if the Company so elects, any
other indebtedness of the Company ranking on a parity with such Debt
Securities) shall be secured equally and ratably with, or prior to, any such
secured indebtedness so long as such indebtedness remains outstanding. The
foregoing restrictions, however, do not apply to liens upon any shares of
Voting Stock of any corporation existing at the time such corporation becomes
a Restricted Subsidiary and extensions, renewals or replacements thereof.
(Senior Debt Indenture, Section 3.9)
The term "Restricted Subsidiary" means (a) so long as they are
Subsidiaries of the Company, SunAmerica Life Insurance Company ("SunAmerica
Life") and Anchor National Life Insurance Company ("Anchor"); (b) any other
present or future Insurance Subsidiary the Consolidated Total Assets (as
defined in the Senior Debt Indenture) of which constitute 20% or more of the
Consolidated Total Assets of the Company; and (c) any Subsidiary which is a
successor, by merger or otherwise, to substantially all of the business or
properties of any Insurance Subsidiary referred to or described in the
foregoing clauses (a) or (b). The term "Subsidiary" means any corporation or
other entity more than 50% of the outstanding shares of Voting Stock of which
is at the time of determination owned or controlled, directly or indirectly,
by the Company. The term "Insurance Subsidiary" means a Subsidiary registered
in the state of its domicile under the insurance laws of such state and
qualified to sell insurance products. (Senior Debt Indenture, Section 1.1)
Consolidation, Merger and Sale of Assets. Each Indenture provides that
the Company shall not consolidate or merge with or into, or transfer or lease
its assets substantially as an entirety to any person unless the Company shall
be the continuing corporation, or the successor corporation or person to which
such assets are transferred or leased shall be organized under the laws of the
United States or any state thereof or the District of Columbia and shall
expressly assume the Company's obligations on the Debt Securities and under
such Indenture, and after giving effect to such transaction no Event of
Default (as defined in such Indenture) shall have occurred and be continuing,
and certain other conditions are met. (Senior and Subordinated Debt
Indentures, Section 9.1)
This covenant would not apply to any recapitalization transaction, a
change of control of the Company or a highly leveraged transaction unless such
transactions or change of control were structured to include a merger or
consolidation or transfer or lease of the Company's assets substantially as an
entirety. Except as may be described in a Prospectus Supplement applicable to
a particular series of Debt Securities, there are no covenants or other
provisions in the Indentures providing for a put or increased interest or that
would otherwise afford holders of Debt Securities additional protection in the
event of a recapitalization transaction, a change of control of the Company or
a highly leveraged transaction.
Restrictions on Certain Dispositions. The Senior Debt Indenture
provides that as long as any of the Senior Debt Securities remain outstanding,
the Company will not, and will not permit any Restricted Subsidiary to, issue,
sell, assign, transfer or otherwise dispose of, directly or indirectly, any of
the Voting Stock of any Restricted Subsidiary, unless (a) the issuance, sale,
assignment, transfer or other disposition is required to comply with the order
of a court or regulatory authority of competent jurisdiction, other than an
order issued at the request of the Company or of one of its Restricted
Subsidiaries; (b) the shares of Voting Stock issued, sold, assigned,
transferred or otherwise disposed of constitute directors' qualifying shares;
(c) all of the Voting Stock of a Restricted Subsidiary then owned by the
Company or by its Restricted Subsidiaries is disposed of, in a single
transaction or in a series of related transactions, for a consideration
consisting of cash or other property the fair market value of which (as
determined in good faith by the Board of Directors) is at least equal to the
Fair Value (as defined below) of such Voting Stock; or (d) after giving effect
to the issuance, sale, assignment, transfer or other disposition, the Company
and its Restricted Subsidiaries would own directly or indirectly at least 80%
of the issued and outstanding Voting Stock of such Restricted Subsidiary and
such issuance, sale, assignment, transfer or other disposition is made for a
consideration consisting of cash or other property which is at least equal to
the Fair Value of such Voting Stock. (Senior Debt Indenture, Section 9.3)
The term "Fair Value" when used with respect to any Voting Stock means the
fair value as determined in good faith by the Board of Directors of the
Company. (Senior Debt Indenture, Section 1.1)
Events of Default
An Event of Default is defined under each Indenture with respect to
Debt Securities of any series issued under such Indenture as being: (a)
default in payment of all or any part of the principal of the Debt
Securities of such series when due, either at maturity (or upon any
redemption), by declaration or otherwise; (b) default for 30 days in
payment of any interest on any Debt Securities of such series; (c) default
in payment of any sinking fund installment when due; (d) default for 60
days after written notice as provided in such Indenture in the observance
or performance of any other covenant or agreement in the Debt Securities of
such series or such Indenture other than a covenant included in such
Indenture solely for the benefit of a series of Debt Securities other than
such series; (e) certain events of bankruptcy, insolvency or
reorganization; or (f) an event of default with respect to any other
indebtedness for borrowed money (other than non-recourse obligations) of
the Company or any of its Restricted Subsidiaries, in an aggregate
principal amount exceeding $10,000,000, if such event of default shall
result in the acceleration of such other indebtedness under the terms of
the instrument under which such indebtedness is issued or secured, so long
as such acceleration is not cured, waived, rescinded or annulled, or such
indebtedness is not discharged, within 10 days after written notice thereof
as provided in such Indenture; provided that if any such acceleration shall
cease or be cured, waived, rescinded or annulled, then the Event of Default
by reason thereof shall be deemed likewise to have been thereupon cured.
(Senior and Subordinated Debt Indentures, Section 5.1)
Each Indenture provides that (a) if an Event of Default due to the
default in payment of principal of, premium, if any, or interest on, any
series of Debt Securities issued under such Indenture or due to the default in
the performance or breach of any other covenant or agreement of the Company
applicable to the Debt Securities of such series but not applicable to all
outstanding Debt Securities issued under such Indenture shall have occurred
and be continuing, either the Trustee or the holders of not less than 25% in
principal amount of the Debt Securities of each affected series (treated as
one class) issued under such Indenture and then outstanding may then declare
the principal of all Debt Securities of each such affected series and interest
accrued thereon to be due and payable immediately; and (b) if any Event of
Default due to a default in the performance of any other of the covenant or
agreements in such Indenture applicable to all outstanding Debt Securities
issued thereunder and then outstanding or due to certain events of bankruptcy,
insolvency and reorganization of the Company shall have occurred and be
continuing, either the trustee or the holders of not less than 25% in
principal amount of all Debt Securities issued under such Indenture and then
outstanding (treated as one class) may declare the principal of all such Debt
Securities and interest accrued thereon to be due and payable immediately, but
upon certain conditions such declarations may be annulled and past defaults
may be waived (except a continuing default in payment of principal of (or
premium, if any) or interest on such Debt Securities) by the holders of a
majority in principal amount of the Debt Securities of all such affected
series then outstanding. (Senior and Subordinated Debt Indentures, Sections
5.1 and 5.10)
Each Indenture contains a provision entitling the Trustee, subject to
the duty of the Trustee during a default to act with the required standard of
care, to be indemnified by the holders of Debt Securities issued under such
Indenture requesting the Trustee to exercise any right or power under such
Indenture before proceeding to exercise any such right or power at the request
of such holders. (Senior and Subordinated Debt Indentures, Section 6.2)
Subject to such provisions in each Indenture for the indemnification of the
Trustee and certain other limitations, the holders of a majority in principal
amount of the outstanding Debt Securities of each affected series (treated as
one class) issued under such Indenture may direct the time, method and place
of conducting any proceedings for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee. (Senior and
Subordinated Debt Indentures, Section 5.9)
Each Indenture provides that no holder of Debt Securities issued under
such Indenture may institute any action against the Company under such
Indenture (except actions for payment of overdue principal, premium, if any,
or interest) unless such holder previously shall have given to the Trustee
written notice of default and continuance thereof and unless the holders of
not less than 25% in principal amount of the Debt Securities of each affected
series (treated as one class) issued under such Indenture and then outstanding
shall have requested the Trustee to institute such action and shall have
offered the Trustee reasonable indemnity, the Trustee shall not have
instituted such action within 60 days of such request and the Trustee shall
not have received direction inconsistent with such written request by the
holders of a majority in principal amount of the Debt Securities of each
affected series (treated as one class) issued under such Indenture and then
outstanding. (Senior and Subordinated Debt Indentures, Sections 5.6 and 5.9)
Each Indenture contains a covenant that the Company will file annually
with the Trustee a certificate of no default or a certificate specifying any
default that exists. (Senior and Subordinated Debt Indentures, Section 3.5)
Discharge, Defeasance and Covenant Defeasance
The Company can discharge or defease its obligations under each
Indenture as set forth below. (Senior and Subordinated Debt Indentures,
Section 10.1)
Under terms satisfactory to the Trustee, the Company may discharge
certain obligations to holders of any series of Debt Securities issued under
such Indentures which have not already been delivered to the Trustee for
cancellation and which have either become due and payable or are by their
terms due and payable within one year (or scheduled for redemption within one
year) by irrevocably depositing with the Trustee cash or, in the case of Debt
Securities payable only in U.S. dollars, U.S. Government Obligations (as
defined in such Indenture), as trust funds in an amount certified to be
sufficient to pay when due, whether at maturity, upon redemption or otherwise,
the principal of, premium, if any, and interest on such Debt Securities.
The Company may also discharge any and all of its obligations to holders
of any series of Debt Securities issued under an Indenture at any time
("defeasance"), but may not thereby avoid its duty to register the transfer or
exchange of such series of Debt Securities, to replace any temporary,
mutilated, destroyed, lost or stolen series of Debt Securities or to maintain
an office or agency in respect of such series of Debt Securities. Under terms
satisfactory to the Trustee, the Company may instead be released with respect
to any outstanding series of Debt Securities issued under the relevant
Indenture from the obligations imposed by certain provisions of such Indenture
including Sections 3.9, 9.1 and 9.3, in the case of the Senior Debt Indenture,
and Section 9.1, in the case of the Subordinated Debt Indenture (which contain
the covenants described above limiting liens, consolidations, mergers,
transfers and leases and certain dispositions) and omit to comply with such
Sections without creating an Event of Default ("covenant defeasance").
Defeasance or covenant defeasance may be effected only if, among other things:
(i) the Company irrevocably deposits with the Trustee cash or, in the case of
Debt Securities payable only in U.S. dollars, U.S. Government Obligations, as
trust funds in an amount certified to be sufficient to pay at maturity (or
upon redemption) the principal of, premium, if any, and interest on all
outstanding Debt Securities of such series issued under such Indenture; (ii)
the Company delivers to the Trustee an opinion of counsel to the effect that
the holders of such series of Debt Securities will not recognize income, gain
or loss for United States federal income tax purposes as a result of such
defeasance or covenant defeasance and that defeasance or covenant defeasance
will not otherwise alter such holders' United States federal income tax
treatment of principal, premium and interest payments on such series of Debt
Securities (in the case of a defeasance, such opinion must be based on a
ruling of the Internal Revenue Service or a change in United States federal
income tax law occurring after the date of such Indenture, since such a result
would not occur under current tax law); and (iii) in the case of the
Subordinated Debt Indenture no event or condition shall exist that, pursuant
to certain provisions described under "Subordinated Debt" above, would prevent
the Company from making payments of principal of, premium, if any, and
interest on the Subordinated Debt Securities at the date of the irrevocable
deposit referred to above.
Modification of the Indentures
Each Indenture provides that the Company and the Trustee may enter into
supplemental indentures without the consent of the holders of Debt Securities
to: (a) secure any Debt Securities, (b) evidence the assumption by a
successor corporation of the obligations of the Company, (c) add covenants for
the protection of the holders of Debt Securities, (d) cure any ambiguity or
correct any inconsistency in such Indenture, provided that such cure or
correction does not adversely affect the holders of such Debt Securities, (e)
establish the forms or terms of Debt Securities of any series and (f) evidence
the acceptance of appointment by a successor trustee. (Senior and
Subordinated Debt Indentures, Section 8.1)
Each Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of Debt Securities of all series issued under such
Indenture then outstanding and affected (voting as one class), to add any
provisions to, or change in any manner or eliminate any of the provisions of,
such Indenture or modify in any manner the rights of the holders of the Debt
Securities of each series so affected; provided that the Company and the
Trustee may not, without the consent of the holder of each outstanding Debt
Security affected thereby, (a) extend the stated maturity of the principal of
any Debt Security, or reduce the principal amount thereof or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or change the currency in which the principal
thereof (including any amount in respect of original issue discount), premium,
if any, or interest thereon is payable or reduce the amount of any original
issue Debt Security that is payable upon acceleration or provable in
bankruptcy or alter certain provisions of such Indenture relating to the Debt
Securities issued thereunder not denominated in U.S. dollars or impair the
right to institute suit for the enforcement of any payment on any Debt
Security when due or (b) reduce the aforesaid percentage in principal amount of
Debt Securities of any series issued under such Indenture, the consent of the
holders of which is required for any such modification. (Senior and
Subordinated Debt Indentures, Section 8.2)
The Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding Subordinated Debt Securities without the
consent of each holder of Senior Indebtedness then outstanding that would be
adversely affected thereby. (Subordinated Debt Indenture, Section 8.6)
Concerning the Trustee
The First National Bank of Chicago is one of a number of banks with
which the Company and its subsidiaries maintain ordinary banking and trust
relationships.
DESCRIPTION OF CAPITAL STOCK
Under the Articles of Incorporation of the Company, as amended and
restated and including any Articles Supplementary (the "Articles of
Incorporation"), the Company has authority to issue 50,000,000 shares of Common
Stock, par value $1.00 per share ("Common Stock"), 15,000,000 shares of
Nontransferable Class B Stock, par value $1.00 per share (the "Nontransferable
Class B Stock"), 15,000,000 shares of Transferable Class B Stock, par value
$1.00 per share (the "Transferable Class B Stock," and, together with the
Nontransferable Class B Stock, the "Class B Stock") and 20,000,000 shares of
Preferred Stock, without par value ("Preferred Stock"). Preferred Stock may
be issued from time to time in one or more classes with such full, specific,
limited or no voting powers, and such designations, preferences and relative,
participating, optional or other special rights, and qualifications and
limitations or restrictions thereof, as shall be stated and expressed in the
Articles of Incorporation or any amendment thereof or in the resolution or
resolutions of the Board of Directors of the Company establishing any class of
Preferred Stock. The dividend, voting, conversion, exchange, repurchase and
redemption rights, if applicable, the liquidation preference, and other
specific terms of each series of the Preferred Stock will be set forth in the
applicable Prospectus Supplement. At July 31, 1995, there were outstanding
(i) 29,438,110 shares of Common Stock (and 13,641,701 shares of Common Stock
reserved for issuance upon conversion of the outstanding Series D Preferred
Shares (as defined below) and the Nontransferable Class B Stock and in
connection with outstanding employee stock options and 150,000 shares of
Common Stock deferred under the Long-Term Performance-Based Incentive Plan for
the Chief Executive Officer); (ii) 6,826,439 shares of Nontransferable Class B
Stock; (iii) 3,514,765 shares of a series of Preferred Stock designated the 9
1/4% Preferred Stock, Series B ("Series B Preferred Shares"); (iv) 486,800
shares of a series of Preferred Stock designated the Adjustable Rate
Cumulative Preferred Stock, Series C ("Series C Preferred Shares"); and (v)
100,050 shares of a series of Preferred Stock designated the Series D
Mandatory Conversion Premium Dividend Preferred Stock ("Series D Preferred
Shares"), represented by 5,002,500 Depositary Shares ("Series D Depositary
Shares") (each representing one-fiftieth of a Series D Preferred Share).
There are no shares of Transferable Class B Stock outstanding. The Series B
Preferred Shares, Series C Preferred Shares and the Series D Preferred Shares
rank pari passu with each other and senior to the Common Stock and Class B
Stock. For further information regarding the Common Stock and Class B Stock,
including a description of the rights attached thereto, see "Common Stock and
Class B Stock" below. For a description of the series of Preferred Stock of
the Company currently outstanding, see "Series B Preferred Shares", "Series C
Preferred Shares" and "Series D Preferred Shares" below.
For a discussion of certain recent proposed amendments to the Articles
of Incorporation and other proposed actions which would serve to (i) increase
the number of authorized shares of the Company's Common Stock and
Nontransferable Class B Stock and (ii) effect a three-for-two stock split of
outstanding shares of Common Stock and Class B Stock, see "The Company--Recent
Developments".
The Prospectus Supplement relating to an offering of Common Stock will
describe terms relevant thereto, including the number of shares offered, the
initial offering price, market price and dividend information.
The applicable Prospectus Supplement will describe the following terms
of any Preferred Stock in respect of which this Prospectus is being delivered
(to the extent applicable to such Preferred Stock): (i) the specific
designation, number of shares, seniority and purchase price; (ii) any
liquidation preference per share; (iii) any date of maturity; (iv) any
redemption, repayment or sinking fund provisions; (v) any dividend rate or
rates and the dates on which any such dividends will be payable (or the method
by which such rates or dates will be determined); (vi) any voting rights;
(vii) if other than the currency of the United States of America, the currency
or currencies including composite currencies in which such Preferred Stock is
denominated and/or in which payments will or may be payable; (viii) the method
by which amounts in respect of such Preferred Stock may be calculated and any
commodities, currencies or indices, or value, rate or price, relevant to such
calculation; (ix) whether the Preferred Stock is convertible or exchangeable
and, if so, the securities or rights into which such Preferred Stock is
convertible or exchangeable (which may include other Preferred Stock, Debt
Securities, Common Stock or other securities or rights of the Company
(including rights to receive payment in cash or securities based on the value,
rate or price of one or more specified commodities, currencies or indices) or
securities of other issuers or a combination of the foregoing), and the terms
and conditions upon which such conversions or exchanges will be effected
including the initial conversion or exchange prices or rates, the conversion
or exchange period and any other related provisions; (x) the place or places
where dividends and other payments on the Preferred Stock will be payable; and
(xi) any additional voting, dividend, liquidation, redemption and other
rights, preferences, privileges, limitations and restrictions.
As described under "Description of Depositary Shares", the Company may,
at its option, elect to offer depositary shares ("Depositary Shares")
evidenced by depositary receipts ("Depositary Receipts"), each representing an
interest (to be specified in the Prospectus Supplement relating to the
particular series of the Preferred Stock) in a share of the particular series
of the Preferred Stock issued and deposited with a Preferred Stock Depositary
(as defined herein).
All shares of Preferred Stock offered hereby, or issuable upon
conversion, exchange or exercise of Securities, will, when issued, be fully
paid and non-assessable.
Common Stock and Class B Stock
Dividends. Except as provided below, holders of Common Stock and Class
B Stock are entitled to receive dividends and other distributions in cash,
stock or property of the Company, when, as and if declared by the Board of
Directors out of assets or funds of the Company legally available therefor and
shall share equally on a per share basis in all such dividends and other
distributions (subject to the rights of holders of Preferred Stock). If a
cash dividend is paid on any of the Common Stock, the Nontransferable Class B
Stock or the Transferable Class B Stock, a cash dividend also will be paid on
the Common Stock, the Nontransferable Class B Stock and the Transferable Class
B Stock, as the case may be. The amount of the cash dividend paid on each
share of Class B Stock will be equal to 90% of the amount of the cash dividend
paid on each share of Common Stock. In addition if holders of Common Stock
receive shares of Common Stock in connection with stock dividends or stock
splits, holders of Transferable Class B Stock will receive a proportionate
number of shares of Transferable Class B Stock and holders of Nontransferable
Class B Stock will receive a proportionate number of shares of Nontransferable
Class B Stock.
Voting Rights. At every meeting of shareholders, every holder of Common
Stock is entitled to one vote per share and every holder of Class B is
entitled to 10 votes per share. All actions submitted to a vote of
shareholders are voted upon by holders of Common Stock and Class B Stock
voting together as a single class (subject to any voting rights which may be
granted to holders of Preferred Stock) and a majority of the votes cast by
such holders is required to approve any such action, except where other
provision is made by law.
In addition to any vote required by law, the holders of Common Stock and
Class B Stock each vote separately as a class (i) on any merger or
consolidation of the Company with or into any other corporation, or any sale,
lease, exchange or other disposition of all or substantially all of the
Company's assets to or with any other person or any dissolution of the Company
(unless the other party to such merger or other transaction is a
majority-owned subsidiary of the Company) and (ii) on any additional issuances
of Class B Stock other than in connection with stock splits and stock
dividends and exchanges of Nontransferable Class B Stock for Transferable
Class B Stock. A majority of votes cast by the Common Stock and Class B
Stock, each voting separately as a class, is required to approve any matters
described above as to which holders of such shares have a separate class vote,
unless, in the case of the events described in clause (i) above, a greater
vote is required by law. In addition, to any vote required by law, the
affirmative vote of the holders of a majority of the shares of the Common
Stock and the Nontransferable Class B Stock, each voting separately as a
class, is required to approve any amendments to the Articles of Incorporation.
Liquidation Rights. In the event of any Liquidation, the holders of
Common Stock and Class B Stock are entitled to share equally in the assets
available for distribution after payment of all liabilities and provision for
the liquidation preference of any shares of Preferred Stock then outstanding.
Class B Stock Conversion Rights. Each share of Class B Stock is
convertible into one share of Common Stock at any time at the option of the
holder. In addition, any transfer of shares of Nontransferable Class B Stock
not permitted under the Articles of Incorporation will result in the
conversion of such shares into shares of Common Stock.
Exchange of Nontransferable Class B Stock. The Nontransferable Class B
Stock is exchangeable in whole at the option of the Company at any time for
Transferable Class B Stock. Holders of Nontransferable Class B Stock will
receive one share of Transferable Class B Stock for each share of
Nontransferable Class B Stock held by them at the time of the exchange.
Miscellaneous. The holders of Common Stock and Class B Stock have no
preemptive rights, cumulative voting rights or subscriptions rights. Except
as described above, the Common Stock and Class B Stock have no conversion
rights and are not subject to redemption.
The transfer agent and registrar with respect to the Common Stock is The
Bank of New York.
All shares of Common Stock offered hereby, or issuable upon conversion,
exchange or exercise of Securities, will, when issued, be fully paid and
non-assessable.
Mr. Eli Broad, Chairman, President and Chief Executive Officer of the
Company, beneficially owns, as of July 31, 1995, 1,162,041 shares of Common
Stock and 5,276,762 shares of Nontransferable Class B Stock, representing an
aggregate of 55.2% of the voting power of the Company's outstanding stock.
Series B Preferred Shares
Dividends. Subject to the rights of holders of other classes of stock
ranking on a parity with or senior to the Series B Preferred Shares which may
from time to time be issued by the Company, the holders of Series B Preferred
Shares are entitled to receive, when, as and if the Board of Directors
declares a dividend on the Series B Preferred Shares, out of assets legally
available for dividends, cumulative preferential cash dividends from the issue
date of the Series B Preferred Shares (June 29, 1992), accruing at the rate
per Series B Preferred Share of $2.3125 per annum or $.5781 per quarter,
payable quarterly in arrears on the 15th day of each March, June, September
and December or, if any such date is not a business day, on the next
succeeding business day.
Dividends on the Series B Preferred Shares accrue whether or not the
Company has earnings, whether or not there are funds legally available for the
payment of such dividends and whether nor not such dividends are declared and
will accumulate to the extent they are not paid on the dividend payment date
for the quarter for which they accrue. Accumulated unpaid dividends do not
bear interest.
Liquidation Rights. Subject to the rights of holders of other classes
of stock ranking on a parity with or senior to Series B Preferred Shares, in
the event of any liquidation, dissolution or winding-up of the business of the
Company, whether voluntary or involuntary (any such event, a "Liquidation"),
the holders of the Series B Preferred Shares, after payment or provision for
payment of the debts and other liabilities of the Company, will be entitled to
receive for each Series B Preferred Share, an amount equal to the sum of $25
and all accrued and unpaid dividends thereon, and no more. If, upon any
Liquidation, there are insufficient assets to permit full payment of holders
of Series B Preferred Shares and shares of any other class of outstanding
Preferred Stock, the holders of Series B Preferred Shares and such other
shares shall be paid ratably in proportion to the full distributable amounts
to which holders of Series B Preferred Shares and such other shares are
respectively entitled upon Liquidation.
Redemption. The Series B Preferred Shares are not redeemable prior to
June 15, 1997. On and after such date, the Series B Preferred Shares are
redeemable in cash at the option of the Company, in whole or in part, from
time to time, at a redemption price of $25.00 per share plus accrued and
unpaid dividends to the date fixed for redemption.
The Series B Preferred Shares are not entitled to the benefits of any
sinking fund.
Voting Rights. The Series B Preferred Shares do not entitle holders
thereof to voting rights, except (i) the Company may not alter any of the
provisions of the Articles of Incorporation or the Articles Supplementary
relating to the Series B Preferred Shares which would materially and adversely
affect any right, preference or privilege of the Series B Preferred Shares
without the affirmative vote of the holders of at least two thirds of the
Series B Preferred Shares outstanding at the time (voting separately as a
class); provided, however, that any such alteration that would authorize,
create or issue additional shares of Preferred Stock or any other shares of
stock (whether or not already authorized) ranking senior to, on a parity with
or junior to the Series B Preferred Shares as to dividends or on the
distribution of assets upon Liquidation shall be deemed not to materially and
adversely affect such rights, preferences or privileges, (ii) in the event
dividends payable on the Series B Preferred Shares shall be in arrears in an
aggregate amount equivalent to six full quarterly dividends (a "Series B
Preferred Share Dividend Default"), or (iii) as required by law. In the event
of a Series B Preferred Share Dividend Default, the holders of the outstanding
Series B Preferred Shares will be entitled to elect together with holders of
all other outstanding classes of Preferred Stock ranking on a parity with the
Series B Preferred Shares and entitled to participate in such election, voting
as a single class, two directors at a special meeting called by the Board of
Directors for such purpose. Such two directors shall serve until the full
dividends accumulated on all outstanding Series B Preferred Shares and all
other outstanding classes of Preferred Stock ranking on a parity with the
Series B Preferred Shares are paid.
Series C Preferred Shares
Dividends. Subject to the rights of holders of other classes of stock
ranking on a parity with or senior to the Series C Preferred which may from
time to time be issued by the Company, the holders of the Series C Preferred
Shares are entitled to receive, when, as and if the Board of Directors
declares a dividend on the Series C Preferred Shares, out of assets legally
available for dividends, cumulative preferential cash dividends accruing at an
adjustable rate, payable quarterly in arrears on the 1st day of March, June,
September or December of each year or, if such day is not a business day, on
the next preceding business day, equal for each quarterly dividend period to
.50% less than the highest of the "Three-Month Treasury Bill Rate," the "Ten
Year Constant Maturity Rate" or the "Twenty Year Constant Maturity Rate"
determined in advance of such dividend period. However, the rate may not be
less than 7.00% per annum nor greater than 13.50% per annum. The current rate
is 7.00%.
Dividends on the Series C Preferred Shares accrue whether or not the
Company has earnings, whether or not there are funds legally available for the
payment of such dividends and whether or not such dividends are declared and
will accumulate to the extent they are not paid on the dividend payment date
for the quarter for which they accrue. Accumulated unpaid dividends do not
bear interest.
Liquidation Rights. Subject to the rights of holders of other classes
of stock ranking on a parity with or senior to Series C Preferred Shares, in
the event of any Liquidation, the holders of the Series C Preferred Shares,
after payment or provision for payment of the debts and other liabilities of
the Company, will be entitled to receive for each Series C Preferred Share, an
amount equal to the sum of $100 and all accrued and unpaid dividends thereon,
and no more. If, upon any Liquidation, there are insufficient assets to
permit full payment of holders of Series C Preferred Shares and shares of any
other class of outstanding Preferred Stock, the holders of Series C Preferred
Shares and such other shares shall be paid ratably in proportion to the full
distributable amounts to which holders of Series C Preferred Shares and such
other shares are respectively entitled upon Liquidation.
Redemption. The Series C Preferred Shares are redeemable at any time at
the option of the Company, in whole or in part, at $103 per share prior to
March 1, 1996 and, thereafter, at $100 per share, plus in each case accrued
and unpaid dividends to the redemption date.
The Series C Preferred Shares are not entitled to the benefits of any
sinking fund.
Voting Rights. Each Series C Preferred Share is entitled to one-tenth
of one vote per share on all matters submitted to a vote of the holders of the
Company's Common Stock, voting as a single class with holders of Common Stock
and with holders of any other class or series having the right to vote with
the holders of Common Stock. In addition, if, on the date used to determine
shareholders of record for any meeting of shareholders at which directors are
to be elected, dividends on the Series C Preferred Shares or any other series
of preferred stock ranking on a parity with the Series C Preferred Shares as
to dividends are in arrears in an amount equal to at least six quarterly
dividends (whether or not consecutive), holders of Series C Preferred Shares
(separately as a class with other holders of affected Preferred Stock) are
entitled to vote for and elect two directors of the Company. Each holder of
Series C Preferred Shares has one vote for each share held in such
circumstance.
Without the consent or affirmative vote of the holders of at least
two-thirds of the outstanding Series C Preferred Shares, voting separately as
a class with all other affected series of Preferred Stock ranking on a parity
either as to dividends or upon liquidation with the Series C Preferred Shares,
the Company shall not authorize, create or issue, or increase the authorized
amount of, any class or series of stock ranking prior to the Series C
Preferred Shares as to dividends or upon liquidation (or any securities
convertible into any such stock). The affirmative vote or consent of the
holders of a least two-thirds of the outstanding Series C Preferred Shares,
voting separately as a class with all other affected series of Preferred
Stock, will be required for any amendment, alteration or repeal, whether by
merger or consolidation or otherwise, of the Company's Articles or any
articles supplemental thereto if the amendment, alteration or repeal adversely
affects the preferences, rights, powers or privileges of the Series C
Preferred Shares and any other Preferred Stock; provided, however, that in any
case in which one or more, but not all, series of such class would be
adversely affected as to the preferences, rights, powers or privileges
thereof, the affirmative vote or consent of the holders of a least two-thirds
of the votes entitled to be cast by the holders of shares of any series that
would be adversely affected, voting as a class, shall be required in lieu
thereof; excluding, however, an increase or decrease (but not to less than the
then outstanding Series C Preferred Shares) in the aggregate number of
authorized Series C Preferred Shares.
Series D Preferred Shares
Dividends. Subject to the rights of holders of other classes of stock
ranking on a parity with or senior to the Series D Preferred Shares which may
from time to time be issued by the Company, the holders of Series D Preferred
Shares are entitled to receive, when, as and if the Board of Directors
declares a dividend on the Series D Preferred Shares, out of assets legally
available for dividends, cumulative preferential cash dividends from the date
of issue of the Series D Preferred Shares (March 3, 1993), accruing at the
rate per Series D Preferred Share of $139 per annum or $34.75 per quarter
(equivalent to $2.78 per annum or $.695 per quarter for each Series D
Depositary Share), payable quarterly in arrears.
Dividends on the Series D Preferred Shares accrue whether or not the
Company has earnings, whether or not there are funds legally available for the
payment of such dividends and whether or not such dividends are declared and
will accumulate to the extent they are not paid on the dividend payment date
for the quarter for which they accrue. Accumulated unpaid dividends will not
bear interest.
Mandatory Conversion of Series D Preferred Shares. On March 1, 1996
(the "Series D Mandatory Conversion Date"), each outstanding Series D
Preferred Share will convert automatically into shares of Common Stock at the
Series D Common Stock Equivalent Rate (as described below) in effect on the
Series D Mandatory Conversion Date and the right to receive an amount in cash
equal to all accrued and unpaid dividends on such Series D Preferred Share to
and including the Series D Mandatory Conversion Date (the "Series D Mandatory
Conversion"), subject to the rights of the Company to call Series D Preferred
Shares prior to Series D Mandatory Conversion. The Series D Common Equivalent
Rate is currently fifty shares of Common Stock for each Series D Preferred
Share (equivalent to one share of Common Stock for each Series D Depositary
Share), subject to adjustment in the event of stock dividends, distribution of
assets or certain other events.
Immediately prior to the effectiveness of a Merger or Consolidation,
each outstanding Series D Preferred Share will convert automatically into (i)
shares of Common Stock at the Series D Common Equivalent Rate in effect on the
effective date of the Merger or Consolidation, plus (ii) the right to receive
an amount in cash equal to the accrued and unpaid dividends on such Series D
Preferred Share to and including the effective date, plus (iii) the right to
receive an amount in cash initially equal to $375 (equivalent to $7.50 for
each Series D Depositary Share), declining by $.350150 (equivalent to $.007003
for each Series D Depositary Share) on each day following the date of issue of
the Series D Preferred Shares (March 3, 1993) to $21 (equivalent to $.42 for
each Series D Depositary Share) on January 1, 1996, and equal to zero
thereafter, determined with reference to the effective date, unless sooner
redeemed. At the option of the Company, it may deliver on the effective date,
in lieu of some or all of the cash consideration described in clauses (ii) and
(iii) of the preceding sentence, shares of Common Stock.
Series D Preferred Shares are not convertible into Common Stock at the
option of the holders thereof.
Right to Call Series D Preferred Shares. Except as provided below, at
any time or from time to time prior to the Series D Mandatory Conversation
Date, the Company has the right to call the outstanding Series D Preferred
Shares for redemption, in whole or in part, and to deliver to the holders
thereof in exchange for each such Series D Preferred Share a number of shares
of Common Stock equal to the Series D Call Price (as described below) on the
redemption date divided by the current market price (as defined) of the Common
Stock on the second trading day preceding the earlier of the commencement of
the mailing of notice of such redemption to holders of the Series D Preferred
Shares or the date such notice is published in accordance with the terms of
the Series D Preferred Shares (the "Series D Notice Date") plus an amount in
cash equal to accrued and unpaid dividends to and including the date of
redemption. The Series D Call Price of each Series D Preferred Share declines
by $.350150 (equivalent to $7.50 for each Series D Depositary Share) on each
day following the date of original issue of the Series D Preferred Shares
(March 3, 1993) from $2,872.50 (equivalent to $57.45 for each Series D
Depositary Share) to $2,518.50 (equivalent to $50.37 for each Series D
Depositary Share) on January 1, 1996, and will be $2,497.50 (equivalent to
$49.95 for each Series D Depositary Share) thereafter.
Liquidation Rights. Subject to the rights of holders of other classes
of stock ranking on a parity with or senior to the Series D Preferred Shares,
in the event of any Liquidation, the holders of Series D Preferred Shares,
after payment or provisions for payment of the debts and other liabilities of
the Company, will be entitled to receive, for each Series D Preferred Share,
an amount equal to the sum of (i) $1,850 (equivalent to $37.00 for each Series
D Depositary Share) and (ii) all accrued and unpaid dividends thereon, and no
more. If, upon any such liquidation, there are insufficient assets to permit
full payment to holders of Series D Preferred Shares and shares of any class
of outstanding Preferred Stock, the holders of Series D Preferred Shares and
such other shares shall be paid ratably in proportion to the full
distributable amounts to which holders of Series D Preferred Shares and such
other shares are respectively entitled.
The Series D Preferred Shares are not entitled to the benefits of any
sinking fund.
Voting Rights. The Series D Preferred Shares do not entitle holders
thereof to voting rights, except (i) the Company may not alter any of the
provisions of the Articles of Incorporation or the Articles Supplementary
relating to the Series D Preferred Shares which would materially and adversely
affect any right, preference or privilege of the Series D Preferred Shares
without the affirmative vote of the holders of at least two-thirds of the
shares of Series D Preferred Shares outstanding at the time (voting separately
as a class); provided, however, that any such alteration that would
authorize, create or issue any additional shares of Preferred Stock or any
other shares of stock (whether or not already authorized) ranking senior to,
on a parity with or junior to the Series D Preferred Shares as to dividends or
on the distribution of assets upon Liquidation shall be deemed not to
materially and adversely affect such rights, preferences or privileges, (ii)
in the event dividends payable on the Series D Preferred Shares shall be in
arrears in an aggregate amount equivalent to six full quarterly dividends (a
"Series D Preferred Share Dividend Default"), or (iii) as required by law. In
the event of a Series D Preferred Share Dividend Default, the holders of all
other outstanding classes of Preferred Stock ranking on a parity with Series
D Preferred Shares and entitled to participate in such election, voting as a
single class, two directors at a special meeting called by the Board of
Directors for such purpose. Such two directors shall serve until the full
dividends accumulated on all outstanding Series D Preferred Shares and all
other outstanding classes of Preferred Stock ranking on a parity with the
Series D Preferred Shares are paid.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of
certain provisions of the Deposit Agreement (as defined below) and of the
Depositary Shares and Depositary Receipts summarizes the material terms of
the Deposit Agreement and of the Depositary Shares and Depositary Receipts,
and is qualified in its entirety by reference to, the form of Deposit
Agreement and form of Depositary Receipts relating to each series of the
Preferred Stock.
General
The Company may, at its option, elect to have shares of Preferred Stock
be represented by Depositary Shares. The shares of any series of the
Preferred Stock underlying the Depositary Shares will be deposited under a
separate deposit agreement (the "Deposit Agreement") between the Company and
a bank or trust company selected by the Company (the "Preferred Stock
Depositary"). The Prospectus Supplement relating to a series of Depositary
Shares will set forth the name and address of the Preferred Stock Depositary.
Subject to the terms of the Deposit Agreement, each owner of a Depositary
Share will be entitled, proportionately, to all the rights, preferences and
privileges of the Preferred Stock represented thereby (including dividend,
voting, redemption, conversion, exchange and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement, each of which will represent the applicable
interest in a number of shares of a particular series of the Preferred Stock
described in the applicable Prospectus Supplement.
Unless otherwise specified in the Prospectus Supplement, a holder of
Depositary Shares is not entitled to receive the shares of Preferred Stock
(but only in whole shares of Preferred Stock) underlying such Depositary
Shares. If the Depositary Receipts delivered by the holder evidence a
number of Depositary Shares in excess of the whole number of shares of
Preferred Stock to be withdrawn, the Depositary will deliver to such holder
a the same time a new Depositary Receipt evidencing such excess number of
Depositary Shares.
Dividends and Other Distributions
The Preferred Stock Depositary will distribute all cash dividends or
other cash distributions in respect of the Preferred Stock to the record
holders of Depositary Receipts in proportion, insofar as possible, to the
number of Depositary Shares owned by such holders.
In the event of a distribution other than in cash in respect to the
Preferred Stock, the Preferred Stock Depositary will distribute property
received by it to the record holders of Depositary Receipts in proportion,
insofar as possible, to the number of Depositary Shares owned by such holders,
unless the Preferred Stock Depositary determines that it is not feasible to
make such distribution, in which case the Preferred Stock Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including sale (at
public or private sale) of such property and distribution of the net proceeds
from such sale to such holders.
The amount so distributed in any of the foregoing cases will be reduced
by any amount required to be withheld by the Company or the Preferred Stock
Depositary on account of taxes.
Conversion and Exchange
If any Preferred Stock underlying the Depositary Shares is subject to
provisions relating to its conversion or exchange as set forth in the
Prospectus Supplement relating thereto, each record holder of Depositary
Shares will have the right or obligation to convert or exchange such
Depositary Shares pursuant to the terms thereof.
Redemption of Depositary Shares
If Preferred Stock underlying the Depositary Shares is subject to
redemption, the Depositary Shares will be redeemed from the proceeds
received by the Preferred Stock Depositary resulting from the redemption,
in whole or in part, of the Preferred Stock held by the Preferred Stock
Depositary. The redemption price per Depositary Share will be equal to the
aggregate redemption price payable with respect to the number of shares of
Preferred Stock underlying the Depositary Shares. Whenever the Company
redeems Preferred Stock from the Preferred Stock Depositary, the Preferred
Stock Depositary will redeem as of the same redemption date a proportionate
number of Depositary Shares representing the shares of Preferred Stock that
were redeemed. If less than all the Depositary Shares are to be redeemed,
the Depositary Shares to be redeemed will be selected by lot or pro rata as
may be determined by the Company.
After the date fixed for redemption, the Depositary Shares so called
for redemption will no longer be deemed to be outstanding and all rights of
the holders of the Depositary Shares will cease, except the right to
receive the redemption price upon such redemption. Any funds deposited by
the Company with the Preferred Stock Depositary for any Depositary Shares
which the holders thereof fail to redeem shall be returned to the Company
after a period of two years from the date such funds are so deposited.
Voting
Upon receipt of notice of any meeting at which the holders of any shares
of Preferred Stock underlying the Depositary Shares are entitled to vote, the
Preferred Stock Depositary will mail the information contained in such notice
to the record holders of the Depositary Receipts. Each record holder of such
Depositary Receipts on the record date (which will be the same date as the
record date for the Preferred Stock) will be entitled to instruct the
Preferred Stock Depositary as to the exercise of the voting rights pertaining
to the number of shares of Preferred Stock underlying such holder's Depositary
Shares. The Preferred Stock Depositary will endeavor, insofar as practicable,
to vote the number of shares of Preferred Stock underlying such Depositary
Shares in accordance with such instructions, and the Company will agree to
take all reasonable action which may be deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to do so. The
Preferred Stock Depositary will abstain from voting the Preferred Stock to the
extent it does not receive specific written instructions from holders of
Depositary Receipts representing such Preferred Stock.
Record Date
Whenever (i) any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall be offered with respect to the Preferred
Stock, or (ii) the Preferred Stock Depositary shall receive notice of any
meeting at which holders of Preferred Stock are entitled to vote or of which
holders of Preferred Stock are entitled to notice, or of the mandatory
conversion of or any election on the part of the Company to call for the
redemption of any Preferred Stock, the Preferred Stock Depositary shall in
each such instance fix a record date (which shall be the same as the record
date for the Preferred Stock) for the determination of the holders of
Depositary Receipts (x) who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the
sale thereof or (y) who shall be entitled to give instructions for the
exercise of voting rights at any such meeting or to receive notice of such
meeting or of such redemption or conversion, subject to the provisions of the
Deposit Agreement.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt and any provision of the Deposit
Agreement may at any time be amended by agreement between the Company and the
Preferred Stock Depositary. However, any amendment which imposes or increases
any fees, taxes or other charges payable by the holders of Depositary Receipts
(other than taxes and other governmental charges, fees and other expenses
payable by such holders as stated under "Charges of Preferred Stock
Depositary"), or which otherwise prejudices any substantial existing right of
holders of Depositary Receipts, will not take effect as to outstanding
Depositary Receipts until the expiration of 90 days after notice of such
amendment has been mailed to the record holders of outstanding Depositary
Receipts.
Whenever so directed by the Company, the Preferred Stock Depositary will
terminate the Deposit Agreement by mailing notice of such termination to the
record holders of all Depositary Receipts then outstanding at least 30 days
prior to the date fixed in such notice for such termination. The Preferred
Stock Depositary may likewise terminate the Deposit Agreement if at any time
45 days shall have expired after the Preferred Stock Depositary shall have
delivered to the Company a written notice of it election to resign and a
successor depositary shall not have been appointed and accepted its
appointment. If any Depositary Receipts remain outstanding after the date of
termination, the Preferred Stock Depositary thereafter will discontinue the
transfer of Depositary Receipts, will suspend the distribution of dividends
to the holders thereof, and will not give any further notices (other than
notice of such termination) or perform any further acts under the Deposit
Agreement except as provided below and except that the Preferred Stock
Depositary will continue (i) to collect dividends on the Preferred Stock and
any other distributions with respect thereto and (ii) to deliver the Preferred
Stock together with such dividends and distributions and the net proceeds of
any sales of rights, preferences, privileges or other property, without
liability for interest thereon, in exchange for Depositary Receipts
surrendered. At any time after the expiration of two years from the date of
termination, the Preferred Stock Depositary may sell the Preferred Stock then
held by it at public or private sales, at such place or places and upon such
terms as it deems proper and may thereafter hold the net proceeds of any such
sale, together with any money and other property then held by it, without
liability for interest thereon, for the pro rata benefit of the holders of
Depositary Receipts which have not been surrendered.
Charges of Preferred Stock Depositary
The Company will pay all charges of the Preferred Stock Depositary
including charges in connection with the initial deposit of the Preferred
Stock, the initial issuance of the Depositary Receipts, the distribution of
information to the holders of Depositary Receipts with respect to matters on
which Preferred Stock is entitled to vote, withdrawals of the Preferred Stock
by the holders of Depositary Receipts or redemption or conversion of the
Preferred Stock, except for taxes (including transfer taxes, if any) and other
governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be at the expense of holders of Depositary Receipts or
persons depositing Preferred Stock.
Miscellaneous
The Preferred Stock Depositary will make available for inspection by
holders of Depositary Receipts at its Corporate Office and its New York
Office, all reports and communications from the Company which are delivered to
the Preferred Stock Depositary as the holder of Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be liable if
it is prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The obligations of
the Preferred Stock Depositary under the Deposit Agreement are limited to
performing its duties thereunder without negligence or bad faith. The
obligations of the Company under the Deposit Agreement are limited to
performing its duties thereunder in good faith. Neither the Company nor the
Preferred Stock Depositary is obligated to prosecute or defend any legal
proceeding in respect of any Depositary Shares or Preferred Stock unless
satisfactory indemnity is furnished. The Company and the Preferred Stock
Depositary are entitled to rely upon advice of or information from counsel,
accountants or other persons believed to be competent and on documents
believed to be genuine.
The Preferred Stock Depositary may resign at any time or be removed by
the Company, effective upon the acceptance by its successor of its
appointment; provided, that if a successor Preferred Stock Depositary has not
been appointed or accepted such appointment within 45 days after the Preferred
Stock Depositary has delivered a notice of election to resign to the Company,
the Preferred Stock Depositary may terminate the Deposit Agreement. See
"Amendment and Termination of Deposit Agreement" above.
DESCRIPTION OF WARRANTS
General
The Company may issue Warrants to purchase Securities, and such Warrants
may be issued independently or together with any Securities and may be
attached to or separate from such Securities. Each series of Warrants will be
issued under a separate warrant agreement (each a "Warrant Agreement") to be
entered into between the Company and a warrant agent ("Warrant Agent"). The
Warrant Agent will act solely as an agent of the Company in connection with
the Warrants of such series and will not assume any obligation or relationship
of agency for or with holders or beneficial owners of Warrants. The following
sets forth certain general terms and provisions of the Warrants offered
hereby. Further terms of the Warrants and the applicable Warrant Agreement are
set forth in the applicable Prospectus Supplement.
The applicable Prospectus Supplement will describe the terms of any
Warrants in respect of which this Prospectus is being delivered, including the
following: (i) the title of such Warrants; (ii) the aggregate number of such
Warrants; (iii) the price or prices at which such Warrants will be issued;
(iv) the currency or currencies, including composite currencies, in which the
price of such Warrants may be payable; (v) the designation and terms of the
Securities purchasable upon exercise of such Warrants; (vi) the price at which
and the currency or currencies, including composite currencies, in which the
Securities purchasable upon exercise of such Warrants may be purchased; (vii)
the date on which the right to exercise such Warrants shall commence and the
date on which such right shall expire; (viii) whether such Warrants will be
issued in registered form or bearer form; (ix) if applicable, the minimum or
maximum amount of such Warrants which may be exercised at any one time; (x) if
applicable, the designation and terms of the Securities with which such
Warrants are issued and the number of such Warrants issued with each such
Security; (xi) if applicable, the date on and after which such Warrants and
the related Securities will be separately transferable; (xii) information with
respect to book-entry procedures, if any; (xiii) if applicable, a discussion
of certain United States Federal income tax considerations; and (xiv) any
other terms of such Warrants, including terms, procedures and limitations
relating to the exchange and exercise of such Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby directly or
through agents, underwriters or dealers.
Offers to purchase Securities may be solicited by agents designated by
the Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the
offer or sale of the Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent set forth, in the Prospectus Supplement. Unless otherwise indicated in
the Prospectus Supplement, any such agent will be acting on a best efforts
basis for the period of its appointment. The Company may also sell Securities
to an agent as principal. Agents may be entitled to, under agreements which
may be entered into with the Company, indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may
be customers of, engage in transactions with or perform services for the
Company in the ordinary course of business.
If any underwriters are utilized in the sale of Securities in respect of
which this Prospectus is delivered, the Company will enter into an
underwriting agreement with such underwriters and the names of the
underwriters and the terms of the transaction will be set forth in the
Prospectus Supplement, which will be used by the underwriters to make resales
of the Securities in respect of which this Prospectus is delivered to the
public. Underwriters may offer and sell the Securities at a fixed price or
prices, which may be changed, or from time to time at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. The underwriters may be entitled, under the relevant
underwriting agreement, to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company
in the ordinary course of business.
If a dealer is utilized in the sale of the Securities in respect of
which this Prospectus is delivered, the Company will sell such Securities to
the dealer, as principal. The dealer may then resell such Securities to the
public at varying prices to be determined by such dealer at the time of
resale. Dealers may be entitled to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may
be customers of, engage in transactions with or perform services for the
Company in the ordinary course of business.
Securities may also be offered and sold, if so indicated in the
Prospectus Supplement, in connection with a remarketing upon their purchase,
in accordance with a redemption or repayment pursuant to their terms, or
otherwise, by one or more firms ("marketing firms"), acting as principals for
their own accounts or as agents for the Company. Any remarketing firm will be
identified and the terms of its agreement, if any, with the Company and its
compensation will be described in the Prospectus Supplement. Remarketing
firms may be deemed to be underwriters in connection with the Securities
remarketing thereby. Remarketing firms may be entitled under agreements which
may be entered into with the Company to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may
be customers of, engage in transactions with or perform services for the
Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters or dealers to solicit offers by certain purchasers to
purchase Securities from the Company at the public offering price set forth in
the Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such contracts will
be subject to only those conditions set forth in the Prospectus Supplement,
and the Prospectus Supplement will set forth the commission payable for
solicitation of such offers.
LEGAL MATTERS
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of the Securities will be passed upon for the Company by Susan L.
Harris, Vice President and General Counsel -- Corporate Affairs of the
Company, and by Davis Polk & Wardwell, New York, New York. Ms. Harris and
Davis Polk & Wardwell will rely as to matters of Maryland law on Piper &
Marbury LLP, Baltimore, Maryland. Ms. Harris holds stock, restricted stock
and options to purchase stock granted under the Company's employee stock
plans, which in the aggregate represent less than 1% of the Company's Common
Stock. David W. Ferguson, a partner of Davis Polk & Wardwell, is a director of
First SunAmerica Life Insurance Company, a subsidiary of the Company.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the year ended September 30,
1994, have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts
in auditing and accounting.
ERISA MATTERS
The Company and certain affiliates of the Company, including Anchor and
SunAmerica Life, may each be considered a "party in interest" within the
meaning of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or a "disqualified person" within the meaning of the Internal
Revenue Code of 1986, as amended (the "Code") with respect to many employee
benefit plans. Prohibited transactions within the meaning of ERISA or the
Code may arise, for example, if the Securities are acquired by a pension or
other employee benefit plan with respect to which the Company or any of its
affiliates is a service provider, unless such Securities are acquired pursuant
to an exemption for transactions effected on behalf of such plan by a
"qualified professional asset manager" or pursuant to any other available
exemption. Any such pension or employee benefit plan proposing to invest in
the Securities should consult with its legal counsel.
SUBJECT TO COMPLETION, DATED SEPTEMBER 28, 1995
PROSPECTUS [LOGO]
SUNAMERICA INC.
Junior Subordinated Debt Securities
SunAmerica Capital Trust II
SunAmerica Capital Trust III
SunAmerica Capital Trust IV
Preferred Securities guaranteed to the extent set forth herein by
SunAmerica Inc.
__________________
SunAmerica Inc. (the "Company") may offer and sell from time to time
unsecured junior subordinated debt securities (the "Junior Subordinated
Debt Securities") consisting of debentures, notes or other evidences of
indebtedness in one or more series and in amounts, at prices and on terms
to be determined at or prior to the time of any such offering. The Junior
Subordinated Debt Securities when issued will be unsecured obligations of
the Company. The Company's obligations under the Junior Subordinated Debt
Securities will be subordinate and junior in right of payment to all Senior
Indebtedness (as defined herein) of the Company.
SunAmerica Capital Trust II, SunAmerica Capital Trust III and SunAmerica
Capital Trust IV (each, a "SunAmerica Trust"), each a statutory business trust
formed under the laws of the State of Delaware, may offer and sell, from time
to time, preferred securities representing undivided beneficial interests in
the assets of the respective SunAmerica Trust ("Preferred Securities"). The
payment of periodic cash distributions ("distributions") with respect to
Preferred Securities of each of the SunAmerica Trusts out of moneys held by
the Property Trustee (as defined herein) of each of the SunAmerica Trusts, and
payments on liquidation of each SunAmerica Trust and on redemption of
Preferred Securities of such SunAmerica Trust, will be guaranteed by the
Company as and to the extent described herein (each, a "Preferred Securities
Guarantee"). See "Description of the Preferred Securities Guarantees". The
Company's obligation under each Preferred Securities Guarantee is an unsecured
obligation of the Company and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Company, including the Junior
Subordinated Debt Securities, except those made pari passu or subordinate by
their terms, and (ii) senior to all capital stock now or hereafter issued by
the Company and to any guarantee now or hereafter entered into by the Company
in respect of any of its capital stock. Junior Subordinated Debt Securities
may be issued and sold from time to time in one or more series by the Company
to a SunAmerica Trust, or a trustee of such trust, in connection with the
investment of the proceeds from the offering of Preferred Securities and
Common Securities (as defined herein) of such SunAmerica Trust. The Junior
Subordinated Debt Securities purchased by a SunAmerica Trust may be
subsequently distributed pro rata to holders of Preferred Securities and
Common Securities in connection with the dissolution of such SunAmerica Trust,
upon the occurrence of certain events as may be described in an accompanying
Prospectus Supplement.
Specific terms of the Junior Subordinated Debt Securities of any series
or the Preferred Securities of any SunAmerica Trust in respect of which this
Prospectus is being delivered (the "Offered Securities") will be set forth in
a Prospectus Supplement with respect to such Offered Securities, which will
describe, without limitation and where applicable, the following: (i) in the
case of Junior Subordinated Debt Securities, the specific designation,
aggregate principal amount, authorized denomination, maturity, premium, if
any, redemption or sinking fund provisions, if any, interest rate (which may
be fixed or variable), if any, the time and method of calculating interest
payments, if any, dates on which premium, if any, and interest, if any, will
be payable, the right of the Company, if any, to defer payments of interest on
the Junior Subordinated Debt Securities and the maximum length of such
deferral period, the initial public offering price, and any listing on a
securities exchange and other specific terms of the offering; and (ii) in the
case of Preferred Securities, the specific designation, number of securities,
liquidation amount per security, initial public offering price, and any
listing on a securities exchange, distribution rate (or method of calculation
thereof), dates on which distributions shall be payable and dates from which
distributions shall accrue, voting rights (if any), terms for any conversion
or exchange into other securities, any redemption or sinking fund provisions,
any other rights, preferences, privileges, limitations or restrictions
relating to the Preferred Securities and the terms upon which the proceeds of
the sale of the Preferred Securities shall be used to purchase a specific
series of Junior Subordinated Debt Securities of the Company.
The Offered Securities may be offered in amounts, at prices and on terms
to be determined at the time of offering. Any Prospectus Supplement relating
to any series of Offered Securities will contain information concerning
certain United States federal income tax considerations, if applicable, to the
Offered Securities. By separate prospectus, the form of which is included in
the Registration Statement of which this Prospectus is a part, the Company may
offer from time to time debt securities (both senior and subordinated),
Preferred Stock (or depositary shares representing Preferred Stock), Common
Stock or Warrants to purchase any of the foregoing. The aggregate initial
public offering price of the securities to be offered by this Prospectus and
such other prospectus shall not exceed $1,000,000,000.
__________________
The Company and/or each of the SunAmerica Trusts may sell the Offered
Securities directly, through agents designated from time to time or through
underwriters or dealers. See "Plan of Distribution" below. If any agents of
the Company and/or any SunAmerica Trust or any underwriters or dealers are
involved in the sale of the Offered Securities, the names of such agents,
underwriters or dealers and any applicable commissions and discounts will be
set forth in any related Prospectus Supplement. The managing underwriter or
underwriters with respect to each series sold to or through underwriters will
be named in the accompanying Prospectus Supplement. See "Plan of
Distribution" for possible indemnification arrangements for dealers,
underwriters and agents.
__________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
__________________
The date of this Prospectus is , 1995.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information filed by the Company with the
Commission can be inspected and copied at the Commission's Public Reference
Room at 450 Fifth Street, N.W., Washington, D.C. 20549, or at the public
reference facilities of the regional offices in Chicago and New York. The
addresses of these regional offices are as follows: 500 West Madison Street,
Chicago, Illinois 60661, and 7 World Trade Center, 13th Floor, New York, New
York 10048. Copies of such material also can be obtained by mail from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington D.C. 20549, upon payment of the fees prescribed by the rules and
regulations of the Commission. Reports, proxy statements, and other
information concerning the Company may also be inspected at the offices of the
New York Stock Exchange, Inc. at 20 Broad Street, New York, New York 10005 and
at the offices of the Pacific Stock Exchange at 301 Pine Street, San
Francisco, California 94104. The Company's Common Stock is listed on both
exchanges.
The Company and the SunAmerica Trusts have filed with the Commission a
Registration Statement on Form S-3 under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the securities offered by this
Prospectus. This Prospectus does not contain all the information set forth
in the Registration Statement and exhibits thereto. In addition, certain
documents filed by the Company with the Commission have been incorporated in
this Prospectus by reference. See "Incorporation of Certain Documents by
Reference." Statements contained herein concerning the provisions of any
document do not purport to be complete and, in each instance, are qualified in
all respects by reference to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. Each such
statement is subject to and qualified in its entirety by such reference. For
further information with respect to the Company, the SunAmerica Trusts and the
securities offered hereby, reference is made to the Registration Statement,
including the exhibits thereto, and the documents incorporated herein by
reference.
No separate financial statements of any of the SunAmerica Trusts have
been included or incorporated by reference herein. The Company and the
SunAmerica Trusts do not consider that such financial statements would be
material to holders of the Preferred Securities because (i) all of the voting
securities of each SunAmerica Trust will be owned, directly or indirectly by,
the Company, a reporting company under the 1934 Act, (ii) each of the
SunAmerica Trusts is a newly-formed special purpose entity, has no operating
history, has no independent operations and is not engaged in, and does not
propose to engage in, any activity other than issuing Trust Securities (as
defined herein) representing undivided beneficial interests in the assets of
such SunAmerica Trust and investing the proceeds thereof in Junior
Subordinated Debt Securities issued by the Company and (iii) the obligations
of each of the SunAmerica Trusts under the Preferred Securities of that
SunAmerica Trust are fully and unconditionally guaranteed by the Company as
and to the extent described herein. See "The SunAmerica Trusts",
"Description of the Preferred Securities," "Description of the Preferred
Securities Guarantees" and "Description of the Junior Subordinated Debt
Securities." The SunAmerica Trusts are statutory business trusts formed under
the laws of the State of Delaware. The Company, as of the date of this
Prospectus, beneficially owns all of the beneficial interests in each
SunAmerica Trust. Each holder of Preferred Securities of a SunAmerica Trust
will be furnished annually with unaudited financial statements of such Trust
as soon as available after the end of the Trust's fiscal year.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in the Prospectus the
following documents previously filed by the Company with the Commission
pursuant to the 1934 Act:
1. Annual Report on Form 10-K for the fiscal year ended September 30,
1994.
2. Quarterly Reports on Form 10-Q for the quarters ended December 31,
1994, March 31, 1995 and June 30, 1995.
3. Current Reports on Form 8-K filed on November 14, 1994, January
24, 1995, April 25, 1995, May 26, 1995, July 14, 1995, July 28,
1995 and September 6, 1995.
All documents filed by the Company pursuant to Section 13(a), 13(c) 14
or 15(d) of the 1934 Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the securities offered hereby shall be
deemed to be incorporated by reference in the Prospectus and to be part hereof
from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the written or
oral request of such person, a copy of any and all of the information that has
been incorporated by reference in the Prospectus (not including exhibits to
the information that is incorporated by reference unless such exhibits are
specifically incorporated by reference into the information that this
Prospectus incorporates). Requests for such document shall be directed to
SunAmerica Inc., 1 SunAmerica Center, Los Angeles, California 90067-6022,
Attention: Vice President, Investor Relations (telephone (310) 772-6000).
For North Carolina Investors: The Commissioner of Insurance of the
State of North Carolina has not approved or disapproved this offering nor has
such Commissioner passed upon the accuracy or adequacy of this Prospectus.
No dealer, salesman or other individual has been authorized to give any
information or to make any representations not contained in this Prospectus in
connection with the offering covered by this Prospectus. If given or made,
such information or representations must not be relied upon as having been
authorized by the Company, any SunAmerica Trust or any underwriter, dealer or
agent. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, any securities other than the registered
securities to which it relates in any jurisdiction where, or to any person to
whom, it is unlawful to make such offer or solicitation. Neither the delivery
of this Prospectus nor any sale made hereunder shall, under any circumstances,
create any implication that there has not been any change in the facts set
forth in this Prospectus or in the affairs of the Company or any SunAmerica
Trust since the date hereof.
__________________
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$," "dollars" or
"U.S.$").
THE COMPANY
The Company is a diversified financial services company specializing in
retirement savings products and services. At June 30, 1995, the Company held
$27 billion of assets throughout its businesses, including $16.20 billion of
assets on its balance sheet, $2.08 billion of assets managed in mutual funds
and private accounts and $8.76 billion under custody in retirement trust
accounts. Together, the Company's life insurance companies rank among the
largest U.S. issuers of annuities. Complementing these annuity operations are
the Company's asset management operations; its two broker-dealers, which the
Company believes, based on industry data, represent the largest network of
independent registered representatives in the nation; and its trust company,
which provides administrative and custodial services to qualified retirement
plans. Through these subsidiaries, the Company specializes in the sale of
tax-deferred long-term savings products and investments to the expanding
preretirement savings market. The Company markets fixed annuities and
fee-generating variable annuities, mutual funds and trust services, as well as
guaranteed investment contracts. The Company's products are distributed
through a broad spectrum of financial services distribution channels,
including independent registered representatives of the Company's
broker-dealer subsidiaries and unaffiliated broker-dealers, independent
general insurance agents and financial institutions.
The principal executive offices of the Company are located at 1
SunAmerica Center, Los Angeles, California 90067-6022, telephone number (310)
772-6000.
RECENT DEVELOPMENTS
On September 20, 1995, the Company's wholly owned subsidiary, Anchor
National Life Insurance Company, had signed a definitive agreement to
acquire CalFarm Life Insurance Company ("CalFarm Life") from its parent,
Zenith National Insurance Corp., for approximately $120 million in cash.
Completion of the acquisition, expected by year-end 1995, is subject to
receipt of normal regulatory approvals and other customary terms and
conditions. CalFarm Life is headquartered in Sacramento, California and
currently markets a range of life and health insurance and annuity
products, specializing in the qualified 403(b) market for teachers and
other non-profit organizations. At June 30, 1995, CalFarm Life had
approximately $739 million in annuity and life reserves, and approximately
$2.8 billion of life insurance in force. Under terms of the agreement,
Zenith National will retain the company's health insurance business.
On September 11, 1995, the Company's Board of Directors approved for
submission to shareholder vote an amendment to the Articles of Incorporation
to increase the Company's authorized capital from (i) 50,000,000 to
175,000,000 shares of Common Stock and (ii) 15,000,000 to 25,000,000 shares of
Class B Stock. The Company has scheduled a special shareholders' meeting on
October 30, 1995 (for shareholders of record as of September 21, 1995) for
consideration of the proposed increase in authorized capital stock. On
September 11, 1995, the Board of Directors also approved a three-for-two stock
split, to be effected in the form of a stock dividend, of its outstanding
Common Stock and Class B Stock, contingent upon shareholder approval of the
proposed increase in authorized capital stock.
THE SUNAMERICA TRUSTS
Each of SunAmerica Capital Trust II, SunAmerica Capital Trust III and
SunAmerica Capital Trust IV is a statutory business trust formed on September
6, 1995 under the Delaware Business Trust Act (the "Business Trust Act")
pursuant to a separate declaration of trust among the Trustees (as defined
herein) of such SunAmerica Trust and the Company and the filing of a
certificate of trust with the Secretary of State of the State of Delaware.
Such declaration will be amended and restated in its entirety (as so amended
and restated, the "Declaration") substantially in the form filed as an exhibit
to the Registration Statement of which this Prospectus forms a part, as of the
date the Preferred Securities of such SunAmerica Trust are initially issued.
Each Declaration is qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). Upon issuance of any Preferred
Securities by a SunAmerica Trust, the holders thereof will own all of the
issued and outstanding Preferred Securities of such SunAmerica Trust. The
Company will acquire securities representing common undivided beneficial
interests in the assets of each SunAmerica Trust (the "Common Securities" and,
together with the Preferred Securities, the "Trust Securities") in an amount
equal to at least 3% of the total capital of such SunAmerica Trust and will
own, directly or indirectly, all of the issued and outstanding Common
Securities of each SunAmerica Trust. The Preferred Securities and the Common
Securities will rank pari passu with each other and will have equivalent
terms; provided that (i) if a Declaration Event of Default (as defined
herein) under the Declaration of a SunAmerica Trust occurs and is continuing,
the holders of Preferred Securities of such SunAmerica Trust will have a
priority over holders of the Common Securities of such SunAmerica Trust with
respect to payments in respect of distributions and payments upon liquidation,
redemption and maturity and (ii) holders of Common Securities have the
exclusive right (subject to the terms of the Declaration) to appoint, remove
or replace the Trustees and to increase or decrease the number of Trustees,
subject to the right of holders of Preferred Securities to appoint one
additional Regular Trustee (as defined below) of such SunAmerica Capital Trust
(a "Special Regular Trustee") in certain limited circumstances set forth in
the Prospectus Supplement. Each SunAmerica Trust exists for the purpose of
(a) issuing its Preferred Securities, (b) issuing its Common Securities to the
Company, (c) investing the gross proceeds from the sale of the Trust
Securities in Junior Subordinated Debt Securities of the Company and (d)
engaging in such other activities as are necessary or incidental thereto. The
rights of the holders of the Preferred Securities, including economic rights,
rights to information and voting rights, are set forth in the applicable
Declaration, the Business Trust Act and the Trust Indenture Act.
The number of trustees (the "Trustees") of each SunAmerica Trust shall
initially be five. Three of such Trustees (the "Regular Trustees") are
individuals who are employees or officers of the Company. The fourth such
trustee will be The Bank of New York, which is unaffiliated with the Company
and which will serve as the property trustee (the "Property Trustee") and act
as the indenture trustee for purposes of the Trust Indenture Act. The fifth
such trustee is an affiliate of The Bank of New York that has its principal
place of business in the State of Delaware (the "Delaware Trustee"). Pursuant
to each Declaration, legal title to the Junior Subordinated Debt Securities
purchased by a SunAmerica Trust will be held by the Property Trustee for the
benefit of the holders of the Trust Securities of such SunAmerica Trust and
the Property Trustee will have the power to exercise all rights, powers and
privileges under the Indenture (as defined under "Description of the Junior
Subordinated Debt Securities") with respect to the Junior Subordinated Debt
Securities. In addition, the Property Trustee will maintain exclusive control
of a segregated non-interest bearing bank account (the "Property Account") to
hold all payments in respect of the Junior Subordinated Debt Securities
purchased by a SunAmerica Trust for the benefit of the holders of Trust
Securities. The Property Trustee will promptly make distributions to the
holders of the Trust Securities out of funds from the Property Account. The
Preferred Securities Guarantees are separately qualified under the Trust
Indenture Act and will be held by The Bank of New York, acting in its capacity
as indenture trustee with respect thereto, for the benefit of the holders of
the applicable Preferred Securities. As used in this Prospectus and any
accompanying Prospectus Supplement, the term "Property Trustee" with respect
to a SunAmerica Trust refers to The Bank of New York acting either in its
capacity as a Trustee under the Declaration and the holder of legal title to
the Junior Subordinated Debt Securities purchased by that Trust or in its
capacity as indenture trustee under, and the holder of, the applicable
Preferred Securities Guarantee, as the context may require. Subject to the
right of holders of Preferred Securities to appoint a Special Regular Trustee
as described above, the Company as the direct or indirect owner of all of the
Common Securities of each SunAmerica Trust, will have the exclusive right
(subject to the terms of the related Declaration) to appoint, remove or
replace Trustees and to increase or decrease the number of Trustees, provided
that the number of Trustees shall be at least three, a majority of which shall
be Regular Trustees. A Special Regular Trustee need not be an employee or
officer of, or otherwise affiliated with, the Company. The term of a
SunAmerica Trust will be set forth in the Prospectus Supplement, but may
terminate earlier as provided in such Declaration.
The duties and obligations of the Trustees of a SunAmerica Trust shall
be governed by the Declaration of such SunAmerica Trust. Under its
Declaration, each SunAmerica Trust shall not, and the Trustees shall cause
such SunAmerica Trust not to, engage in any activity other than in connection
with the purposes of such SunAmerica Trust or other than as required or
authorized by the related Declaration. In particular, each SunAmerica Trust
shall not and the Trustees shall not (a) invest any proceeds received by such
SunAmerica Trust from holding the Junior Subordinated Debt Securities
purchased by such SunAmerica Trust but shall promptly distribute from the
Property Account all such proceeds to holders of Trust Securities pursuant to
the terms of the related Declaration and of the Trust Securities; (b) acquire
any assets other than as expressly provided in the related Declaration; (c)
possess Trust property for other than a Trust purpose; (d) make any loans,
other than loans represented by the Junior Subordinated Debt Securities; (e)
possess any power or otherwise act in such a way as to vary the assets of such
SunAmerica Trust or the terms of its Trust Securities in any way whatsoever;
(f) issue any securities or other evidences of beneficial ownership of, or
beneficial interests in, such SunAmerica Trust other than its Trust
Securities; (g) incur any indebtedness for borrowed money or (h)(i) direct
the time, method and place of exercising any trust or power conferred upon the
Indenture Trustee (as defined under "Description of the Junior Subordinated
Debt Securities") with respect to the Junior Subordinated Debt Securities
deposited in that SunAmerica Trust as trust assets or upon the Property
Trustee of that SunAmerica Trust with respect to its Preferred Securities,
(ii) waive any past default that is waivable under the Indenture or the
Declaration, (iii) exercise any right to rescind or annul any declaration that
the principal of all of the Junior Subordinated Debt Securities deposited in
that SunAmerica Trust as trust assets shall be due and payable or (iv) consent
to any amendment, modification or termination of the Indenture or such Junior
Subordinated Debt Securities or the Declaration, in each case where such
consent shall be required, unless in the case of this clause (h) the Property
Trustee shall have received an unqualified opinion of nationally recognized
independent tax counsel recognized as expert in such matters to the effect
that such action will not cause such SunAmerica Trust to be classified for
United States federal income tax purposes as an association taxable as a
corporation or a partnership and that such SunAmerica Trust will continue to
be classified as a grantor trust for United States federal income tax
purposes.
The books and records of each SunAmerica Trust will be maintained at the
principal office of such SunAmerica Trust and will be open for inspection by a
holder of Preferred Securities of such SunAmerica Trust or his representative
for any purpose reasonably related to its interest in such SunAmerica Trust
during normal business hours. Each holder of Preferred Securities will be
furnished annually with unaudited financial statements of the applicable
SunAmerica Trust as soon as available after the end of such SunAmerica Trust's
fiscal year.
Except as provided below or under the Business Trust Act and the Trust
Indenture Act, holders of Preferred Securities will have no voting rights. In
certain circumstances set forth in a Prospectus Supplement, holders of
Preferred Securities of a SunAmerica Trust shall have the right to vote, as a
single class, for the appointment of a Special Regular Trustee who need not be
an employee or officer of or otherwise affiliated with the Company. The
Special Regular Trustee shall have the same rights, powers and privileges
under the Declaration as the Regular Trustees.
The Property Trustee, for the benefit of the holders of the Trust
Securities of a SunAmerica Trust, is authorized under each Declaration to
exercise all rights under the Indenture with respect to the Junior
Subordinated Debt Securities deposited in such SunAmerica Trust as trust
assets, including its rights as the holder of such Junior Subordinated Debt
Securities to enforce the Company's obligations under such Junior Subordinated
Debt Securities upon the occurrence of an Indenture Event of Default. The
Property Trustee shall also be authorized to enforce the rights of holders of
Preferred Securities of a SunAmerica Trust under the Preferred Securities
Guarantee. If any SunAmerica Trust's failure to make distributions on the
Preferred Securities of a SunAmerica Trust is a consequence of the Company's
exercise of any right under the terms of the Junior Subordinated Debt
Securities deposited in such SunAmerica Trust as trust assets to extend the
interest payment period for such Junior Subordinated Debt Securities, the
Property Trustee will have no right to enforce the payment of distributions on
such Preferred Securities until a Declaration Event of Default shall have
occurred. Holders of a least a majority in liquidation amount of the
Preferred Securities held by a SunAmerica Trust will have the right to direct
the Property Trustee for that SunAmerica Trust with respect to certain matters
under the Declaration for that SunAmerica Trust and the related Preferred
Securities Guarantee. If the Property Trustee fails to enforce its rights
under the Indenture or fails to enforce the Preferred Securities Guarantee,
any holder of Preferred Securities may, after a period of 30 days has elapsed
from such holder's written request to the Property Trustee to enforce such
rights or the Preferred Securities Guarantee, institute a legal proceeding
against the Company to enforce such rights or the Preferred Securities
Guarantee, as the case may be.
Pursuant to each Declaration, distributions on the Preferred
Securities of a SunAmerica Trust must be paid on the dates payable to the
extent that the Property Trustee for that SunAmerica Trust has cash on hand
in the applicable Property Account to permit such payment. The funds
available for distribution to the holders of the Preferred Securities of a
SunAmerica Trust will be limited to payments received by the Property
Trustee in respect of the Junior Subordinated Debt Securities that are
deposited in the SunAmerica Trust as trust assets. If the Company does not
make interest payments on the Junior Subordinated Debt Securities deposited
in a SunAmerica Trust as trust assets, the Property Trustee will not make
distributions on the Preferred Securities of such SunAmerica Trust. Under
the Declaration, if and to the extent the Company does make interest
payments on the Junior Subordinated Debt Securities deposited in a
SunAmerica Trust as trust assets, the Property Trustee is obligated to make
distributions on the Trust Securities of such SunAmerica Trust on a Pro
Rata Basis (as defined below). The payment of distributions on the
Preferred Securities of a SunAmerica Trust is guaranteed by SunAmerica on a
subordinated basis as and to the extent set forth under "Description of the
Preferred Securities Guarantee". A Preferred Securities Guarantee is a
full and unconditional guarantee from the time of issuance of the
applicable Preferred Securities but the Preferred Securities Guarantee
covers distributions and other payments on the applicable Preferred
Securities only if and to the extent that the Company has made a payment to
the Property Trustee of interest or principal on the Junior Subordinated
Debt Securities deposited in the SunAmerica Trust as trust assets. As used
in this Prospectus, the term "Pro Rata Basis" shall mean pro rata to each
holder of Trust Securities of a SunAmerica Trust according to the aggregate
liquidation amount of the Trust Securities of such SunAmerica Trust held by
the relevant holder in relation to the aggregate liquidation amount of all
Trust Securities of such SunAmerica Trust outstanding unless, in relation
to a payment, a Declaration Event of Default under the Declaration has
occurred and is continuing, in which case any funds available to make such
payment shall be paid first to each holder of the Preferred Securities of
such SunAmerica Trust pro rata according to the aggregate liquidation
amount of the Preferred Securities held by the relevant holder in relation
to the aggregate liquidation amount of all the Preferred Securities of such
SunAmerica Trust outstanding, and only after satisfaction of all amounts
owed to the holders of such Preferred Securities, to each holder of Common
Securities of such SunAmerica Trust pro rata according to the aggregate
liquidation amount of such Common Securities held by the relevant holder in
relation to the aggregate liquidation amount of all Common Securities of
such SunAmerica Trust outstanding.
If an Indenture Event of Default occurs and is continuing with
respect to Junior Subordinated Debt Securities deposited in a SunAmerica
Trust as trust assets, an Event of Default under the Declaration (a
"Declaration Event of Default") of such SunAmerica Trust will occur and be
continuing with respect to any outstanding Trust Securities of such
SunAmerica Trust. In such event, each Declaration provides that the
holders of Common Securities of such SunAmerica Trust will be deemed to
have waived any such Declaration Event of Default with respect to the
Common Securities until all Declaration Events of Default with respect to
the Preferred Securities of such SunAmerica Trust have been cured or
waived. Until all such Declaration Events of Default with respect to the
Preferred Securities of such SunAmerica Trust have been so cured or waived,
the Property Trustee will be deemed to be acting solely on behalf of the
holders of the Preferred Securities of such SunAmerica Trust and only the
holders of such Preferred Securities will have the right to direct the
Property Trustee with respect to certain matters under such Declaration and
consequently under the Indenture. In the event that any Declaration Event
of Default with respect to the Preferred Securities of such SunAmerica
Trust is waived by the holders of the Preferred Securities of such
SunAmerica Trust as provided in the Declaration, the holders of Common
Securities pursuant to such Declaration have agreed that such waiver also
constitutes a waiver of such Declaration Event of Default with respect to
the Common Securities for all purposes under the Declaration without any
further act, vote or consent of the holders of the Common Securities.
Each Declaration provides that the Trustees of such SunAmerica Trust
may treat the person in whose name a Certificate representing its Preferred
Securities is registered on the books and records of such SunAmerica Trust
as the sole holder thereof and of the Preferred Securities represented
thereby for purposes of receiving distributions and for all other purposes
and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such certificate or in the Preferred Securities
represented thereby on the part of any person, whether or not such
SunAmerica Trust shall have actual or other notice thereof. Preferred
Securities will be issued in fully registered form. Unless otherwise
specified in a Prospectus Supplement, Preferred Securities will be
represented by a global certificate registered on the books and records of
such SunAmerica Trust in the name of a depositary (the "Depositary") named
in an accompanying Prospectus Supplement or its nominee. Under each
Declaration:
(i) such SunAmerica Trust and the Trustees thereof shall be
entitled to deal with the Depositary (or any successor depositary)
for all purposes, including the payment of distributions and
receiving approvals, votes or consents under the related Declaration,
and except as set forth in the related Declaration with respect to
the Property Trustee, shall have no obligation to persons owning a
beneficial interest in Preferred Securities ("Preferred Security
Beneficial Owners") registered in the name of and held by the
Depositary or its nominee; and
(ii) the rights of Preferred Security Beneficial Owners shall be
exercised only through the Depositary (or any successor depositary) and
shall be limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Depositary and/or its
participants. With respect to Preferred Securities registered in the
name of and held by the Depositary or its nominee, all notices and other
communications required under each Declaration shall be given to, and
all distributions on such Preferred Securities shall be given or made
to, the Depositary (or its successor).
The specific terms of the depositary arrangement with respect to the Preferred
Securities will be disclosed in the applicable Prospectus Supplement.
In each Declaration, the Company has agreed to pay for all debts and
obligations (other than with respect to the Trust Securities) and all costs
and expenses of the applicable SunAmerica Trust, including the fees and
expenses of its Trustees and any taxes and all costs and expenses with respect
thereto, to which such SunAmerica Trust may become subject, except for United
States withholding taxes. The foregoing obligations of the Company under each
Declaration are for the benefit of, and shall be enforceable by, any person to
whom any such debts, obligations, costs, expenses and taxes are owed (a
"Creditor") whether or not such Creditor has received notice thereof. Any
such Creditor may enforce such obligations of the Company directly against the
Company and the Company has irrevocably waived any right or remedy to require
that any such Creditor take any action against any SunAmerica Trust or any
other person before proceeding against the Company. The Company has agreed in
each Declaration to execute such additional agreements as may be necessary or
desirable in order to give full effect to the foregoing.
The foregoing description summarizes the material terms of the
Declarations and is qualified in its entirety by reference to the form of
Declaration which has been filed as an exhibit to the Registration Statement
of which this Prospectus is a part.
The business address of each SunAmerica Trust is c/o SunAmerica Inc., 1
SunAmerica Center, Los Angeles, California 90067-6022, telephone number (310)
772-6000.
USE OF PROCEEDS
Each SunAmerica Trust will use all proceeds received from the sale of
its Trust Securities to purchase Junior Subordinated Debt Securities from the
Company.
Unless otherwise set forth in the applicable Prospectus Supplement, the
net proceeds from the sale of the Junior Subordinated Debt Securities are
expected to be used by the Company for general corporate purposes, including
repayment or redemption of outstanding debt or preferred stock, the possible
acquisition of financial services businesses or assets thereof, investments in
portfolio assets and working capital needs. The Company routinely reviews
opportunities to acquire financial services businesses or assets thereof.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the consolidated ratios of earnings to
fixed charges and earnings to combined fixed charges and preferred stock
dividends for the Company for the periods indicated:
<TABLE>
<CAPTION> Nine months ended
June 30,
Years ended September 30, (unaudited)
________________________________________________ ___________________
1990 1991 1992 1993 1994 1994 1995
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges
(excluding interest incurred on
reserves and trust deposits)(1) 2.4x 2.7x 4.0x 6.1x 5.8x 5.9x 5.8x
Ratio of earnings to fixed charges
(including interest incurred on
reserves and trust deposits)(2) 1.1x 1.1x 1.2x 1.4x 1.5x 1.5x 1.5x
Ratio of earnings to combined
fixed charges and preferred stock
dividends (excluding interest
incurred on reserves and trust
deposits)(3) 2.0x 2.3x 2.7x 2.8x 2.8x 2.8x 3.3x
Ratio of earnings to combined
fixed charges and preferred stock
dividends (including interest
incurred on reserves and trust
deposits)(4) 1.1x 1.1x 1.2x 1.3x 1.4x 1.4x 1.4x
<FN>
__________
(1) In computing the ratio of earnings to fixed charges (excluding interest
incurred on reserves and trust deposits), fixed charges consist of
interest expense on senior and subordinated indebtedness and dividends
on the preferred securities of a subsidiary grantor trust. Earnings are
computed by adding interest incurred on senior and subordinated
indebtedness and dividends paid on the preferred securities of a
subsidiary grantor trust to pretax income.
(2) In computing the ratio of earnings to fixed charges (including
interest incurred on reserves and trust deposits), fixed charges
consist of interest expense on senior and subordinated indebtedness,
fixed annuity contracts, guaranteed investment contracts and trust
deposits, and dividends on the preferred securities of a subsidiary
grantor trust. Earnings are computed by adding interest incurred on
senior and subordinated indebtedness, fixed annuity contracts,
guaranteed investment contracts and trust deposits, and dividends
paid on the preferred securities of a subsidiary grantor trust to
pretax income.
(3) In computing the ratio of earnings to combined fixed charges and
preferred stock dividends (excluding interest incurred on reserves and
trust deposits), combined fixed charges and preferred stock dividends
consist of interest expense on senior and subordinated indebtedness,
dividends on the preferred securities of a subsidiary grantor trust and
dividends on preferred stock of the Company on a tax equivalent basis.
Earnings are computed by adding interest incurred on senior and
subordinated indebtedness and dividends paid on the preferred securities
of a subsidiary grantor trust to pretax income.
(4) In computing the ratio of earnings to combined fixed charges and
preferred stock dividends (including interest incurred on reserves and
trust deposits), combined fixed charges and preferred stock dividends
consist of interest expense on senior and subordinated indebtedness,
fixed annuity contracts, guaranteed investment contracts and trust
deposits; dividends on the preferred securities of a subsidiary grantor
trust; and dividends on preferred stock of the Company on a tax
equivalent basis. Earnings are computed by adding interest incurred on
senior and subordinated indebtedness, fixed annuity contracts,
guaranteed investment contracts and trust deposits and dividends paid on
the preferred securities of a subsidiary grantor trust to pretax income.
</TABLE>
DESCRIPTION OF THE PREFERRED SECURITIES
Each SunAmerica Trust may issue, from time to time, only one series
of Preferred Securities having terms described in the Prospectus Supplement
relating thereto. The Declaration of each SunAmerica Trust authorizes the
Regular Trustees of such SunAmerica Trust to issue on behalf of such
SunAmerica Trust one series of Preferred Securities. Each Declaration will
be qualified as an indenture under the Trust Indenture Act. The Preferred
Securities will have such terms, including distributions, redemption,
voting, liquidation rights and such other preferred, deferred or other
special rights or such restrictions as shall be set forth in the related
Declaration or made part of such Declaration by the Trust Indenture Act.
Reference is made to any Prospectus Supplement relating to the Preferred
Securities of a SunAmerica Trust for specific terms, including (i) the
specific designation of such Preferred Securities, (ii) the number of
Preferred Securities issued by such SunAmerica Trust, (iii) the annual
distribution rate (or method of calculation thereof) for Preferred
Securities issued by such SunAmerica Trust, the date or dates upon which
such distributions shall be payable and the record date or dates for the
payment of such distributions, (iv) whether distributions on Preferred
Securities issued by such SunAmerica Trust shall be cumulative, and, in the
case of Preferred Securities having such cumulative distribution rights,
the date or dates or method of determining the date or dates from which
distributions on Preferred Securities issued by such SunAmerica Trust shall
be cumulative, (v) the amount or amounts which shall be paid out of the
assets of such SunAmerica Trust to the holders of Preferred Securities of
such SunAmerica Trust upon voluntary or involuntary dissolution, winding-up
or termination of such SunAmerica Trust, (vi) the obligation or right, if
any, of such SunAmerica Trust to purchase or redeem Preferred Securities
issued by such SunAmerica Trust and the price or prices at which, the
period or periods within which and the terms and conditions upon which
Preferred Securities issued by such SunAmerica Trust shall or may be
purchased or redeemed, in whole or in part, pursuant to such obligation or
right, (vii) the voting rights, if any, of Preferred Securities issued by
such SunAmerica Trust in addition to those required by law, including the
number of votes per Preferred Security and any requirement for the approval
by the holders of Preferred Securities, or of Preferred Securities issued
by one or more SunAmerica Trusts, or of both, as a condition to specified
actions or amendments to the Declaration of such SunAmerica Trust, (viii)
terms for any conversion or exchange into other securities and (ix) any
other relevant rights, preferences, privileges, limitations or restrictions
of Preferred Securities issued by such SunAmerica Trust consistent with the
Declaration of such SunAmerica Trust or with applicable law. All Preferred
Securities offered hereby will be guaranteed by the Company as and to the
extent set forth below under "Description of the Preferred Securities
Guarantees." Certain United States federal income tax considerations
applicable to any offering of Preferred Securities will be described in the
Prospectus Supplement relating thereto.
In connection with the issuance of Preferred Securities, each SunAmerica
Trust will issue one series of Common Securities. The Declaration of each
SunAmerica Trust authorizes the Regular Trustees of such trust to issue on
behalf of such SunAmerica Trust one series of Common Securities having such
terms including distributions, redemption, voting, liquidation rights or such
restrictions as shall be set forth therein. The terms of the Common
Securities issued by a SunAmerica Trust will be substantially identical to the
terms of the Preferred Securities issued by such SunAmerica Trust and the
Common Securities will rank pari passu, and payments will be made thereon on a
Pro Rata Basis with the Preferred Securities except that if a Declaration
Event of Default occurs and is continuing, the rights of the holders of such
Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and maturity will be subordinated to the rights of the
holders of such Preferred Securities. Except in certain limited
circumstances, the Common Securities issued by a SunAmerica Trust will also
carry the right to vote and to appoint, remove or replace any of the Trustees
of that SunAmerica Trust. All of the Common Securities of a SunAmerica Trust
will be directly or indirectly owned by the Company.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the Preferred
Securities Guarantees that will be executed and delivered by the Company
for the benefit of the holders from time to time of Preferred Securities.
Each Preferred Security Guarantee will be separately qualified under the
Trust Indenture Act and will be held by the Bank of New York, acting in its
capacity as indenture trustee with respect thereto, for the benefit of
holders of the Preferred Securities of the applicable SunAmerica Trust.
The terms of each Preferred Securities Guarantee will be those set forth in
such Preferred Securities Guarantee and those made part of such Guarantee
by the Trust Indenture Act. This description summarizes the material terms
of the Preferred Securities Guarantees and is qualified in its entirety by
reference to, the form of Preferred Securities Guarantee, which is filed as
an exhibit to the Registration Statement of which this Prospectus forms a
part, and the Trust Indenture Act.
General
Pursuant to each Preferred Securities Guarantee, the Company will
irrevocably and unconditionally agree, to the extent set forth therein, to pay
in full, to the holders of the Preferred Securities issued by a SunAmerica
Trust, the Guarantee Payments (as defined herein) (without duplication of
amounts theretofore paid by such SunAmerica Trust), to the extent not paid by
such SunAmerica Trust, regardless of any defense, right of set-off or
counterclaim that such SunAmerica Trust may have or assert. The following
payments or distributions with respect to Preferred Securities issued by a
SunAmerica Trust to the extent not paid or made by such SunAmerica Trust (the
"Guarantee Payments"), will be subject to the Preferred Securities Guarantee
(without duplication): (i) any accrued and unpaid distributions on such
Preferred Securities, and the redemption price, including all accrued and
unpaid distributions to the date of redemption, with respect to any Preferred
Securities called for redemption by such SunAmerica Trust but if and only to
the extent that in each case the Company has made a payment to the related
Property Trustee of interest or principal on the Junior Subordinated Debt
Securities deposited in such SunAmerica Trust as trust assets and (ii) upon a
voluntary or involuntary dissolution, winding-up or termination of such
SunAmerica Trust (other than in connection with the distribution of such
Junior Subordinated Debt Securities to the holders of Preferred Securities or
the redemption of all of the Preferred Securities upon the maturity or
redemption of such Junior Subordinated Debt Securities) the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid distributions
on such Preferred Securities to the date of payment, to the extent such
SunAmerica Trust has funds available therefor or (b) the amount of assets of
such SunAmerica Trust remaining available for distribution to holders of such
Preferred Securities in liquidation of such SunAmerica Trust. The Company's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Company to the holders of Preferred Securities or
by causing the applicable SunAmerica Trust to pay such amounts to such
holders.
The Preferred Securities Guarantee is a full and unconditional guarantee
from the time of issuance of the applicable Preferred Securities but the
Preferred Securities Guarantee covers distributions and other payments on such
Preferred Securities only if and to the extent that the Company has made a
payment to the Property Trustee of interest or principal on the Junior
Subordinated Debt Securities deposited in the applicable SunAmerica Trust as
trust assets. If the Company does not make interest or principal payments on
the Junior Subordinated Debt Securities deposited in the applicable SunAmerica
Trust as trust assets, the Property Trust will not make distributions of the
Preferred Securities of such SunAmerica Trust and the SunAmerica Trust will
not have funds available therefor.
Certain Covenants of the Company
In each Preferred Securities Guarantee, the Company will covenant that,
so long as any Preferred Securities issued by the applicable SunAmerica Trust
remain outstanding, the Company will not (A) declare or pay any dividends on,
or redeem, purchase, acquire or make a distribution or liquidation payment
with respect to, any of its common stock or preferred stock or make any
guarantee payment with respect thereto or (B) make any payment of interest,
premium (if any) or principal on any debt securities issued by the Company
which rank pari passu with or junior to the Junior Subordinated Debt
Securities, if at such time (i) the Company shall be in default with respect
to its Guarantee Payments or other payment obligations under the Preferred
Securities Guarantee, (ii) there shall have occurred any Declaration Event of
Default under the related Declaration or (iii) in the event that Junior
Subordinated Debt Securities are issued to a SunAmerica Trust in connection
with the issuance of Trust Securities by such SunAmerica Trust, the Company
shall have given notice of its election to defer payments of interest on such
Junior Subordinated Debt Securities by extending the interest payment period
as provided in the terms of the Junior Subordinated Debt Securities and such
period, or any extension thereof, is continuing; provided that (a) the Company
will be permitted to pay accrued dividends (and cash in lieu of fractional
shares) upon the conversion of any of its Series D Mandatory Conversion
Premium Dividend Preferred Stock (the "Series D Preferred Stock") or upon the
conversion of any other Preferred Stock of the Company as may be outstanding
from time to time, in each case in accordance with the terms of such stock.
In addition, so long as any Preferred Securities remain outstanding, the
Company has agreed (i) to remain the sole direct or indirect owner of all of
the outstanding Common Securities issued by the applicable SunAmerica Trust
and shall not cause or permit the Common Securities to be transferred except
to the extent permitted by the related Declaration; provided that any
permitted successor of the Company under the Indenture may succeed to the
Company's ownership of the Common Securities issued by the applicable
SunAmerica Trust and (ii) to use reasonable efforts to cause such SunAmerica
Trust to continue to be treated as a grantor trust for United States federal
income tax purposes except in connection with a distribution of Junior
Subordinated Debt Securities.
Amendments and Assignment
Except with respect to any changes that do not adversely affect the
rights of holders of Preferred Securities (in which case no consent will be
required), each Preferred Securities Guarantee may be amended only with the
prior approval of the holders of not less than 66 2/3% in liquidation
amount of the outstanding Preferred Securities issued by the applicable
SunAmerica Trust. The manner of obtaining any such approval of holders of
such Preferred Securities will be set forth in an accompanying Prospectus
Supplement. All guarantees and agreements contained in a Preferred
Securities Guarantee shall bind the successors, assignees, receivers,
trustees and representatives of the Company and shall inure to the benefit
of the holders of the Preferred Securities of the applicable SunAmerica
Trust then outstanding. Except in connection with a consolidation, merger
or sale involving the Company that is permitted under the Indenture, the
Company may not assign its obligations under any Preferred Securities
Guarantee.
Termination of the Preferred Securities Guarantees
Each Preferred Securities Guarantee will terminate and be of no further
force and effect as to the Preferred Securities issued by the applicable
SunAmerica Trust upon full payment of the redemption price of all Preferred
Securities of such SunAmerica Trust, or upon distribution of the Junior
Subordinated Debt Securities to the holders of the Preferred Securities of
such SunAmerica Trust in exchange for all of the Preferred Securities issued
by such SunAmerica Trust, or upon full payment of the amounts payable upon
liquidation of such SunAmerica Trust. Notwithstanding the foregoing, each
Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of Preferred
Securities issued by the applicable SunAmerica Trust must restore payment of
any sums paid under such Preferred Securities or such Guarantee.
Status of the Preferred Securities Guarantees
The Company's obligations under each Preferred Securities Guarantee to
make the Guarantee Payments will constitute an unsecured obligation of the
Company and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Company, including the Junior Subordinated Debt
Securities, except those made pari passu or subordinate by their terms, and
(ii) senior to all capital stock now or hereafter issued by the Company and to
any guarantee now or hereafter entered into by the Company in respect of any
of its capital stock. The Company's obligations under each Preferred
Securities Guarantee will rank pari passu with respect to any other Preferred
Securities Guarantee. Because the Company is a holding company, the Company's
obligations under each Preferred Securities Guarantee are also effectively
subordinated to all existing and future liabilities, including trade payables,
of the Company's subsidiaries, except to the extent that the Company is a
creditor of the subsidiaries recognized as such. Each Declaration provides
that each holder of Preferred Securities issued by the applicable SunAmerica
Trust by acceptance thereof agrees to the subordination provisions and other
terms of the related Preferred Securities Guarantee.
Each Preferred Securities Guarantee will constitute a guarantee of
payment and not of collection (that is, the guaranteed party may institute
a legal proceeding directly against the guarantor to enforce its rights
under the guarantee without first instituting a legal proceeding against
any other person or entity). Each Preferred Securities Guarantee will be
deposited with The Bank of New York, as indenture trustee, to be held for
the benefit of the holders of the Preferred Securities issued by the
applicable SunAmerica Trust. The Bank of New York shall enforce the
Preferred Securities Guarantee on behalf of the holders of the Preferred
Securities issued by the applicable SunAmerica Trust. The holders of not
less than a majority in aggregate liquidation amount of the Preferred
Securities issued by the applicable SunAmerica Trust have the right to
direct the time, method and place of conducting any proceeding for any
remedy available in respect of the related Preferred Securities Guarantee,
including the giving of directions to The Bank of New York. If The Bank of
New York fails to enforce such Preferred Securities Guarantee as above
provided, any holder of Preferred Securities issued by the applicable
SunAmerica Trust may, after a period of 30 days has elapsed from such
holder's written request to The Bank of New York to enforce such Preferred
Securities Guarantee, institute a legal proceeding directly against the
Company to enforce its rights under such Preferred Securities Guarantee,
without first instituting a legal proceeding against the applicable
SunAmerica Trust or any other person or entity.
Miscellaneous
The Company will be required to provide annually to The Bank of New York
a statement as to the performance by the Company of certain of its obligations
under the Preferred Securities Guarantees and as to any default in such
performance. The Company is required to file annually with The Bank of New
York an officer's certificate as to the Company's compliance with all
conditions under Preferred Securities Guarantees.
The Bank of New York, prior to the occurrence of a default, undertakes
to perform only such duties as are specifically set forth in the applicable
Preferred Securities Guarantee and, after default with respect to a Preferred
Securities Guarantee, shall exercise the same degree of care as a prudent
individual would exercise in the conduct of his or her own affairs. Subject
to such provision, The Bank of New York is under no obligation to exercise any
of the powers vested in it by a Preferred Securities Guarantee at the request
of any holder of Preferred Securities unless it is offered reasonable
indemnity against the costs, expenses and liabilities that might be incurred
thereby.
Governing Law
The Guarantees will be governed by, and construed in accordance with,
the laws of the State of New York.
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
Junior Subordinated Debt Securities may be issued from time to time
in one or more series under an Indenture dated March 15, 1995 (the
"Indenture") between the Company and The First National Bank of Chicago, as
trustee (the "Indenture Trustee"). The Indenture has been filed as an
exhibit to the Registration Statement of which this Prospectus forms a
part. The following description summarizes the material terms of the
Indenture, and is qualified in its entirety by reference to the Indenture
and the Trust Indenture Act. Whenever particular provisions or defined
terms in the Indenture are referred to herein, such provisions or defined
terms are incorporated by reference herein. Section and Article references
used herein are references to provisions of the Indenture.
General
The Junior Subordinated Debt Securities will be unsecured, junior
subordinated obligations of the Company. The Indenture does not limit the
amount of additional indebtedness the Company or any of its subsidiaries
may incur. Since the Company is a holding company, the Company's rights
and the rights of its creditors, including the holders of Junior
Subordinated Debt Securities, to participate in the assets of any
subsidiary upon the latter's liquidation or recapitalization will be
subject to the prior claims of the subsidiary's creditors, except to the
extent that the Company may itself be a creditor with recognized claims
against the subsidiary. Claims on the Company's subsidiaries by creditors
other than the Company include substantial claims for policy benefits and
debt obligations, as well as other liabilities incurred in the ordinary
course of business. In addition, since many of the Company's subsidiaries
are insurance companies subject to regulatory control by various state
insurance departments, the ability of such subsidiaries to pay dividends or
make loans or advances to the Company without prior regulatory approval is
limited by applicable laws and regulations.
The Indenture does not limit the aggregate principal amount of
indebtedness which may be issued thereunder and provides that Junior
Subordinated Debt Securities may be issued thereunder from time to time in one
or more series. The Junior Subordinated Debt Securities are issuable in one
or more series pursuant to an indenture supplemental to the Indenture.
In the event Junior Subordinated Debt Securities are issued to a
SunAmerica Trust or a Trustee of such trust in connection with the issuance of
Trust Securities by such SunAmerica Trust, such Junior Subordinated Debt
Securities subsequently may be distributed pro rata to the holders of such
Trust Securities in connection with the dissolution of such SunAmerica Trust
upon the occurrence of certain events described in the Prospectus Supplement
relating to such Trust Securities. Only one series of Junior Subordinated
Debt Securities will be issued to a SunAmerica Trust or a trustee of such
trust in connection with the issuance of Trust Securities by such SunAmerica
Trust.
Reference is made to the Prospectus Supplement which will accompany
this Prospectus for the following terms of the series of Junior
Subordinated Debt Securities being offered thereby (to the extent such
terms are applicable to the Junior Subordinated Debt Securities): (i) the
specific designation of such Junior Subordinated Debt Securities, aggregate
principal amount and purchase price; (ii) any limit on the aggregate
principal amount of such Junior Subordinated Debt Securities; (iii) the
date or dates on which the principal of such Junior Subordinated Debt
Securities is payable and the right, if any, to extend such date or dates;
(iv) the rate or rates at which such Junior Subordinated Debt Securities
will bear interest or the method of calculating such rate or rates; (v)
the date or dates from which such interest shall accrue, the interest
payment dates on which such interest will be payable or the manner of
determination of such interest payment dates and the record dates for the
determination of holders to whom interest is payable on any such interest
payment dates; (vi) the right, if any, to extend the interest payment
periods and the duration of such extension; (vii) the period or periods
within which, the price or prices at which, and the terms and conditions
upon which, such Junior Subordinated Debt Securities may be redeemed, in
whole or in part, at the option of the Company; (viii) the right and/or
obligation, if any of the Company to redeem or purchase such Junior
Subordinated Debt Securities pursuant to any sinking fund or analogous
provisions or at the option of the holder thereof and the period or periods
for which, the price or prices at which, and the terms and conditions upon
which, such Junior Subordinated Debt Securities shall be redeemed or
purchased, in whole or part, pursuant to such right and/or obligation;
(ix) any applicable United States federal income tax consequences,
including whether and under what circumstances the Company will pay
additional amounts on the Junior Subordinated Debt Securities held by a
person who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the Company
will have the option to redeem such Junior Subordinated Debt Securities
rather than pay such additional amounts; (x) the form of such Junior
Subordinated Debt Securities; (xi) if other than denominations of $25 or
any integral multiple thereof, the denominations in which such Junior
Subordinated Debt Securities shall be issuable; (xii) any and all other
terms with respect to such series, including any modification of or
additions to the events of default or covenants provided for with respect
to the Junior Subordinated Debt Securities, and any terms which may be
required by or advisable under applicable laws or regulations not
inconsistent with the Indenture; and (xiii) whether such Junior
Subordinated Debt Securities are issuable as a global security, and in such
case, the identity of the depositary.
Unless otherwise indicated in the Prospectus Supplement relating
thereto, the Junior Subordinated Debentures will be issued in United States
dollars in fully registered form without coupons in denominations of $25 or
integral multiples thereof. Junior Subordinated Debt Securities may be
presented for exchange and Junior Subordinated Debt Securities in registered
form may be presented for transfer in the manner, at the places and subject to
the restrictions set forth in the Junior Subordinated Debt Securities and the
Prospectus Supplement. Such services will be provided without charge, other
than any tax or other governmental charge payable in connection therewith, but
subject to the limitations provided in the Indenture. Junior Subordinated
Debt Securities in bearer form and the coupons, if any, appertaining thereto
will be transferable by delivery.
Junior Subordinated Debt Securities may bear interest at a fixed rate or
a floating rate. Junior Subordinated Debt Securities bearing no interest or
interest at a rate that at the time of issuance is below the prevailing market
rate will be sold at a discount below their stated principal amount. Special
United States federal income tax considerations applicable to any such
discounted Junior Subordinated Debt Securities or to certain Junior
Subordinated Debt Securities issued at par which are treated as having been
issued at a discount for United States federal income tax purposes are
described in the relevant Prospectus Supplement.
Certain Covenants of the Company Applicable to the Junior Subordinated Debt
Securities
If Junior Subordinated Debt Securities are issued to a SunAmerica
Trust in connection with the issuance of Trust Securities by such
SunAmerica Trust, the Company will covenant in the Indenture that, so long
as the Preferred Securities issued by the applicable SunAmerica Trust
remain outstanding, the Company will not (a) declare or pay any dividends
on, or redeem, purchase, acquire or make a distribution or liquidation
payment with respect to, any of its common stock or preferred stock or make
any guarantee payment with respect thereto if at such time (i) the Company
shall be in default with respect to its Guarantee Payments or other payment
obligations under the related Preferred Securities Guarantee, (ii) there
shall have occurred any Indenture Event of Default with respect to the
Junior Subordinated Debt Securities or (iii) in the event that Junior
Subordinated Debt Securities are issued to a SunAmerica Trust in connection
with the issuance of Trust Securities by such SunAmerica Trust, the Company
shall have given notice of its election to defer payments of interest on
such Junior Subordinated Debt Securities by extending the interest payment
period as provided in the terms of such Junior Subordinated Debt Securities
and such period, or any extension thereof, is continuing; provided that (x)
the Company will be permitted to pay accrued dividends (and cash in lieu of
fractional shares) upon the conversion of any of its Series D Preferred
Stock or upon the conversion of any other Preferred Stock of the Company as
may be outstanding from time to time, in each case in accordance with the
terms of such stock and (y) the foregoing will not apply to any stock
dividends paid by the Company. In addition, if Junior Subordinated Debt
Securities are issued to a SunAmerica Trust in connection with the issuance
of Trust Securities by such SunAmerica Trust, for so long as the Preferred
Securities issued by the applicable SunAmerica Trust remain outstanding,
the Company has agreed (i) to remain the sole direct or indirect owner of
all of the outstanding Common Securities issued by the applicable
SunAmerica Trust and shall not cause or permit the Common Securities to be
transferred except to the extent permitted by the related Declaration;
provided that any permitted successor of the Company under the Indenture
may succeed to the Company's ownership of the Common Securities issued by
the applicable SunAmerica Trust, (ii) to comply fully with all of its
obligations and agreements contained in the related Declaration and (iii)
not to take any action which would cause the applicable SunAmerica Trust to
cease to be treated as a grantor trust for United States federal income tax
purposes except in connection with a distribution of Junior Subordinated
Debt Securities.
Subordination
The Indenture provides that the Junior Subordinated Debt Securities
are subordinate and junior in right of payment to all Senior Indebtedness
of the Company. In the event (a) of any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or other
similar proceedings in respect of the Company or its property or any
proceeding for voluntary liquidation, dissolution or other winding up of
the Company, or (b) that Junior Subordinated Debt Securities of any series
are declared due and payable before their expressed maturity because of the
occurrence of an Indenture Event of Default pursuant to Section 6.01 of the
Indenture (under circumstances other than as set forth in clause (a)
above), then the holders of all Senior Indebtedness shall first be entitled
to receive payment of the full amount due thereon in money, before the
holders of any of the Junior Subordinated Debt Securities are entitled to
receive payment on account of the principal of, premium, if any, or
interest on the indebtedness evidenced by such Junior Subordinated Debt
Securities. In the event and during the continuation of any default in
payment of any Senior Indebtedness or if any event of default shall exist
under any Senior Indebtedness, as "event of default" is defined therein or
in the agreement under which the same is outstanding, no payment of the
principal or, premium, if any, or interest on the Junior Subordinated Debt
Securities shall be made. (Section 14.02 and 14.03). If this Prospectus
is being delivered in connection with a series of Junior Subordinated Debt
Securities, the accompanying Prospectus Supplement will set forth the
approximate amount of Senior Indebtedness outstanding as of the end of the
most recent fiscal quarter.
The term "Senior Indebtedness" shall mean the principal of and premium,
if any, and interest on (a) all indebtedness of the Company, whether
outstanding on the date of the Indenture or thereafter created, (i) for money
borrowed by the Company (including, without limitation, indebtedness issued or
to be issued pursuant to the Indenture dated as of April 15, 1993 between
SunAmerica and The First National Bank of Chicago, as Trustee), (ii) for money
borrowed by, or obligations of, others and either assumed or guaranteed,
directly or indirectly, by the Company, (iii) in respect of letters of credit
and acceptances issued or made by banks, or (iv) constituting purchase money
indebtedness, or indebtedness secured by property included in the property,
plant and equipment accounts of the Company at the time of the acquisition of
such property by the Company for the payment of which the Company is directly
liable and (b) all deferrals, renewals, extensions and refundings of, and
amendments, modifications and supplements to, any such indebtedness. As used
in the preceding sentence the term "purchase money indebtedness" means
indebtedness evidenced by a note, debenture, bond or other instrument (whether
or not secured by any lien or other security interest) issued or assumed as
all or a part of the consideration for the acquisition of property, whether by
purchase, merger, consolidation or otherwise, unless by its terms such
indebtedness is subordinate to other indebtedness of the Company.
Notwithstanding anything to the contrary in the Indenture or the Junior
Subordinated Debt Securities, Senior Indebtedness shall not include (i) any
indebtedness of the Company which, by its terms or the terms of the instrument
creating or evidencing it, is subordinate in right of payment to or pari passu
with the Junior Subordinated Debt Securities, as the case may be, and in
particular, the Junior Subordinated Debt Securities shall rank pari passu with
respect to all other debt securities and guarantees in respect thereof issued
to any other trusts, partnerships or other entity affiliated with the Company
which is a financing vehicle of the Company in connection with the issuance of
preferred securities by such financing vehicle, or (ii) any indebtedness of
the Company to a subsidiary of the Company. (Section 1.01). The Subordinated
Indenture does not contain any limitation on the amount of Senior Indebtedness
that can be incurred by the Company.
Indenture Events of Default
The Indenture provides that any one or more of the following
described events, which has occurred and is continuing, constitutes an
"Indenture Event of Default" with respect to each series of Junior
Subordinated Debt Securities:
(a) failure for 30 days to pay interest on the Junior Subordinated
Debt Securities of such series when due; provided that a valid extension
of the interest payment period by the Company shall not constitute a
default in the payment of interest for this purpose; or
(b) failure to pay principal of or premium, if any, on the Junior
Subordinated Debt Securities of such series when due whether at
maturity, upon redemption, by declaration or otherwise; or
(c) failure to observe or perform any other covenant contained
in the Indenture with respect to such series for 90 days after
written notice to the Company from the Indenture Trustee or the
holders of at least 25% in principal amount of the outstanding Junior
Subordinated Debt Securities of such series; or
(d) certain events in bankruptcy, insolvency or reorganization of
the Company.
In each and every such case, unless the principal of all the Junior
Subordinated Debt Securities of that series shall have already become due and
payable, either the Indenture Trustee or the holders of not less than 25% in
aggregate principal amount of the Junior Subordinated Debt Securities of that
series then outstanding, by notice in writing to the Company (and to the
Indenture Trustee if given by such holders), may declare the principal of all
the Junior Subordinated Debt Securities of that series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable. (Section 6.01).
The holders of a majority in aggregate outstanding principal amount of
the Junior Subordinated Debt Securities of that series have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Indenture Trustee. (Section 6.06). The Indenture Trustee
or the holders of not less than 25% in aggregate outstanding principal amount
of the Junior Subordinated Debt Securities of that series may declare the
principal due and payable immediately upon an Indenture Event of Default with
respect to such series, but the holders of a majority in aggregate outstanding
principal amount of Junior Subordinated Debt Securities of such series may
annul such declaration and waive the default if the default has been cured and
a sum sufficient to pay all matured installments of interest and principal
otherwise than by acceleration and any premium has been deposited with the
Indenture Trustee. (Sections 6.01 and 6.06).
The holders of a majority in aggregate outstanding principal amount of
the Junior Subordinated Debt Securities of that series may, on behalf of the
holders of all the Junior Subordinated Debt Securities of that series, waive
any past default, except a default in the payment of principal, premium, if
any, or interest (unless such default has been cured and a sum sufficient to
pay all matured installments of interest and principal otherwise than by
acceleration and any premium has been deposited with the Indenture Trustee) or
a call for redemption of Junior Subordinated Debt Securities. (Section 6.06).
The Company is required to file annually with the Indenture Trustee a
certificate as to whether or not the Company is in compliance with all the
conditions and covenants under the Indenture.
If Junior Subordinated Debt Securities are issued to a SunAmerica
Trust in connection with the issuance of Trust Securities of such
SunAmerica Trust, then under the applicable Declaration an Indenture Event
of Default with respect to such series of Junior Subordinated Debt
Securities will constitute a Declaration Event of Default.
Modification of the Indenture
The Indenture contains provisions permitting the Company and the
Indenture Trustee, with the consent of the holders of not less than a
majority in principal amount of the outstanding Junior Subordinated Debt
Securities of each series affected, to modify the Indenture or any
supplemental indenture affecting the rights of the holders of such Junior
Subordinated Debt Securities; provided that no such modification may,
without the consent of the holder of each outstanding Junior Subordinated
Debt Security affected thereby, (i) extend the fixed maturity of any Junior
Subordinated Debt Securities of any series, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, without
the consent of the holder of each Junior Subordinated Debt Security so
affected or (ii) reduce the percentage of Junior Subordinated Debt
Securities, the holders of which are required to consent to any such
modification, without the consent of the holders of each Junior
Subordinated Debt Security then outstanding and affected thereby. (Section
9.02).
Book-Entry and Settlement
If any Junior Subordinated Debt Securities of a series are represented
by one or more global securities (each, a "Global Security"), the applicable
Prospectus Supplement will describe the circumstances, if any, under which
beneficial owners of interests in any such Global Security may exchange such
interests for Junior Subordinated Debt Securities of such series and of like
tenor and principal amount in any authorized form and denomination. Principal
of and any premium and interest on a Global Security will be payable in the
manner described in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Junior Subordinated Debt Securities to be represented
by a Global Security will be described in the applicable Prospectus
Supplement.
Consolidation, Merger and Sale
The Indenture will provide that the Company may not consolidate with or
merge into any other person or transfer or lease its properties and assets
substantially as an entirety to any person and may not permit any person to
merge into or consolidate with the Company unless (i) either the Company will
be the resulting or surviving entity or any successor or purchaser is a
corporation organized under the laws of the United States of America, any
State or the District of Columbia, and any such successor or purchaser
expressly assumes the Company's obligations under the Indenture and (ii)
immediately after giving effect to the transaction no Event of Default shall
have occurred and be continuing.
Defeasance and Discharge
Under the terms of the Indenture, the Company will be discharged from
any and all obligations in respect of the Junior Subordinated Debt Securities
of a series (except in each case for certain obligations to register the
transfer or exchange of such Junior Subordinated Debt Securities, replace
stolen, lost or mutilated Junior Subordinated Debt Securities of that series,
maintain paying agencies and hold moneys for payment in trust) if (i) the
Company irrevocably deposits with the Indenture Trustee cash or U.S.
Government Obligations, as trust funds in an amount certified to be sufficient
to pay at maturity (or upon redemption) the principal of, premium, if any, and
interest on all outstanding Junior Subordinated Debt Securities of such
series; (ii) the Company delivers to the Indenture Trustee an opinion of
counsel to the effect that the holders of the Junior Subordinated Debt
Securities of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such defeasance and that
defeasance will not otherwise alter holders' United States federal income tax
treatment of principal, premium and interest payments on such Junior
Subordinated Debt Securities of such series (such opinion must be based on a
ruling of the Internal Revenue Service or a change in United States federal
income tax law occurring after the date of such Indenture, since such a result
would not occur under current tax law); and (iii) no event or condition shall
exist that, pursuant to the subordination provisions applicable to such
series, would prevent the Company from making payments of principal of,
premium, if any, and interest on the Junior Subordinated Debt Securities of
such series at the date of the irrevocable deposit referred to above.
(Section 11.01).
Governing Law
The Indenture and the Junior Subordinated Debt Securities will be
governed by, and construed in accordance with, the laws of the State of New
York. (Section 13.05).
Information Concerning the Indenture Trustee
The Indenture Trustee, prior to default, undertakes to perform only such
duties as are specifically set forth in the Indenture and, after default,
shall exercise the same degree of care as a prudent individual would exercise
in the conduct of his or her own affairs. (Section 7.01). Subject to such
provision, the Indenture Trustee is under no obligation to exercise any of the
powers vested in it by the Indenture at the request of any holder of Junior
Subordinated Debt Securities, unless offered reasonable indemnity by such
holder against the costs, expenses and liabilities that might be incurred
thereby. (Section 7.02). The Indenture Trustee is not required to expend or
risk its own funds or otherwise incur personal financial liability in the
performance of its duties if the Trustee reasonably believes that repayment or
adequate indemnity is not reasonably assured to it. (Section 7.01). The
Indenture Trustee is one of a number of banks with which the Company and its
subsidiaries maintain ordinary banking and trust relationships.
Miscellaneous
The Company will have the right at all times to assign any of its rights
or obligations under the Indenture to a direct or indirect wholly-owned
subsidiary of the Company; provided that, in the event of any such assignment,
the Company will remain jointly and severally liable for all such obligations.
Subject to the foregoing, the Indenture will be binding upon and inure to the
benefit of the parties thereto and their respective successors and assigns.
The Indenture provides that it may not otherwise be assigned by the parties
thereto other than by the Company to a successor or purchaser pursuant to a
consolidation, merger or sale permitted by the Indenture. (Section 13.11).
PLAN OF DISTRIBUTION
The Company may sell any series of Junior Subordinated Debt Securities
and the SunAmerica Trusts may sell the Preferred Securities being offered
hereby directly or through agents, underwriters or dealers.
Offers to purchase Offered Securities may be solicited by agents
designated by the Company from time to time. Any such agent, who may be
deemed to be an underwriter as that term is defined in the Securities Act,
involved in the offer or sale of the Offered Securities in respect of which
this Prospectus is delivered will be named, and any commissions payable by the
Company to such agent set forth, in the Prospectus Supplement. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be
acting on a best efforts basis for the period of its appointment. The Company
may also sell Offered Securities to an agent as principal. Agents may be
entitled under agreements which may be entered into the Company to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act, and may be customers of, engage in
transactions with or perform services for the Company in the ordinary course
of business.
If any underwriters are utilized in the sale of Offered Securities in
respect of which this Prospectus is delivered, the Company will enter into an
underwriting agreement with such underwriters and the names of the
underwriters and the terms of the transaction will be set forth in the
Prospectus Supplement, which will be used by the underwriters to make resales
of the Offered Securities in respect of which this Prospectus is delivered to
the public. Underwriters may offer and sell the Offered Securities at a fixed
price or prices, which may be changed, or from time to time at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The underwriters may be entitled, under the
relevant underwriting agreement, to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may
be customers of, engage in transactions with or perform services for the
Company in the ordinary course of business.
If a dealer is utilized in the sale of the Offered Securities in
respect of which this Prospectus is delivered, the Company will sell such
Offered Securities to the dealer, as principal. The dealer may then resell
such Offered Securities to the public at varying prices to be determined by
such dealer at the time of resale. Dealers may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act, and may be customers of, engage in
transactions with or perform services for the Company in the ordinary
course of business.
Offered Securities may also be offered and sold, if so indicated in
the Prospectus Supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their
terms, or otherwise, by one or more firms ("marketing firms"), acting as
principals for their own accounts or as agents for the Company. Any
remarketing firm will be identified and the terms of its agreement, if any,
with the Company and its compensation will be described in the Prospectus
Supplement. Remarketing firms may be deemed to be underwriters in
connection with the Offered Securities remarketed thereby. Remarketing
firms may be entitled under agreements which may be entered into with the
Company to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, and may be customers of,
engage in transactions with or perform services for the Company in the
ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters or dealers to solicit offers by certain purchasers to
purchase Offered Securities from the Company at the public offering price set
forth in the Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. Such
contracts will be subject to only those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the commission
payable for solicitation of such offers.
LEGAL MATTERS
Unless otherwise indicated in the applicable Prospectus Supplement,
certain matters of Delaware law relating to the validity of the Preferred
Securities will be passed upon for the SunAmerica Trusts by Richards, Layton &
Finger, Wilmington, Delaware, special Delaware counsel to the SunAmerica
Trusts. The validity of the Preferred Securities Guarantees and the Junior
Subordinated Debt Securities will be passed upon for the SunAmerica Trusts and
the Company by Davis Polk & Wardwell, New York, New York, special counsel to
the Company and the SunAmerica Trusts. Certain legal matters in connection
with the Preferred Securities, the Preferred Securities Guarantees and the
Junior Subordinated Debt Securities will be passed upon for the SunAmerica
Trusts and the Company by Susan L. Harris, Vice President and General
Counsel--Corporate Affairs of the Company. Ms. Harris and Davis Polk &
Wardwell will rely as to matters of Maryland law on Piper & Marbury LLP,
Baltimore, Maryland. Ms. Harris holds stock, restricted stock and options to
purchase stock granted under the Company's employee stock plan, which in the
aggregate represents less than 1% of the Company's common stock. David W.
Ferguson, a partner of Davis Polk & Wardwell, is a director of First
SunAmerica Life Insurance Company, a subsidiary of the Company.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the year ended September 30,
1994, have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts
in auditing and accounting.
ERISA MATTERS
The Company and certain affiliates of the Company, including Anchor
National Life Insurance Company and SunAmerica Life Insurance Company, may
each be considered a "party in interest" within the meaning of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or a
"disqualified person" within the meaning of the Internal Revenue Code of 1986,
as amended (the "Code") with respect to many employee benefit plans.
Prohibited transactions within the meaning of ERISA or the Code may arise, for
example, if the Offered Securities are acquired by a pension or other employee
benefit plan with respect to which the Company or any of its affiliates is a
service provider, unless such Offered Securities are acquired pursuant to an
exemption for transactions effected on behalf of such plan by a "qualified
professional asset manager" or pursuant to any other available exemption. Any
such pension or employee benefit plan proposing to invest in the Offered
Securities should consult with its legal counsel.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses in connection with the
issuance and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are
estimates, except the SEC registration fee.
SEC registration fee.......................... $344,828
Printing and engraving........................ 100,000
Legal fees and expenses....................... 150,000
Fees of accountants........................... 80,000
Fees of trustee............................... 50,000
Blue sky fees and expenses.................... 60,000
Rating agency fees............................ 10,000
Miscellaneous................................. 55,172
---------
Total................................... $850,000
=========
_______
Item 15. Indemnification of Directors and Officers.
Section 2-418 of the Maryland General Corporation law permits the
indemnification of directors, officers, employees and agents of Maryland
corporations. Article Eighth of the Company's Restated Articles of
Incorporation, as amended and restated (the "Articles") authorizes the
indemnification of directors and officers to the full extent required or
permitted by the General Laws of the State of Maryland, now or hereafter in
force, whether such persons are serving the Company, or, at its request, any
other entity, which indemnification shall include the advance of expenses
under the procedures and to the full extent permitted by law. Article Eighth
of the Articles of Incorporation, as amended and restated, further provides
that the foregoing rights of indemnification shall not be exclusive of any
other rights to which those seeking indemnification may be entitled and that
no amendment or repeal of Article Eighth shall apply to or have any effect on
any right to indemnification provided thereunder with respect to acts or
omissions occurring prior to such amendment or repeal. In addition, the
Company's officers and directors are covered by certain directors' and
officers' liability insurance policies maintained by the Company. Reference
is made to section 2-418 of the Maryland General Corporation Law and Article
Eighth of the Articles, which are incorporated herein by reference.
Each Amended and Restated Declaration of Trust (a "Declaration") of a
SunAmerica Trust provides that no Trustee, affiliate of any Trustee or any
officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee or any employee or agent of such
SunAmerica Trust or its affiliates (each, an "Indemnified Person") shall be
liable, responsible or accountable in damages or otherwise to any employee or
agent of such SunAmerica Trust or its affiliates, or any officers, directors,
shareholders, employees, representatives or agents of the Company or its
affiliates or to any holders of Trust Securities of such SunAmerica Trust for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith on behalf of such
SunAmerica Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of the authority conferred on such Indemnified Person
by the Declaration of such SunAmerica Trust or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's gross negligence (or, in the case of
the Property Trustee of such SunAmerica Trust, negligence) or willful
misconduct with respect to such acts or omissions. Each Declaration also
provides that, to the fullest extent permitted by applicable law, the Company
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith on
behalf of such SunAmerica Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by such Declaration, except that no Indemnified Person
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of gross negligence (or, in the
case of the Property Trustee of such SunAmerica Trust, negligence) or willful
misconduct with respect to such acts or omissions. Each Declaration further
provides that to the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any
claim, demand, action, suit or the final disposition of such claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the
Company prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Company of an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified pursuant to such
Declaration.
Item 16. List of Exhibits.
<TABLE>
<CAPTION>
Exhibit
- -------
<S> <C>
1.1 Form of Underwriting Agreement (Debt)
1.2 Form of Underwriting Agreement (Equity)
1.3 Form of Underwriting Agreement (Preferred Securities)
3.1 Restated Charter of the Company, dated October 2, 1991 (incorporated herein be
reference to Exhibit 3(a) to the Company's Form 8, dated and filed October 4, 1991,
amending the Company's Annual Report on Form 10-K for the year ended
September 30, 1990)
3.2 Articles Supplementary, dated June 24, 1992 (incorporated herein by reference to
Exhibit 3(c) to the Company's 1992 Annual Report on Form 10-K, filed November 30,
1992)
3.3 Amendment to the Company's Restated Articles of Incorporation, dated February 1,
1993 (incorporated herein by reference to Exhibit 1 to the Company's Form 8-K, filed
February 3, 1993)
3.4 Articles Supplementary, dated March 9, 1993 (incorporated herein by reference to
Exhibit 3(e) to the Company's Registration Statement No. 33-66048 on Form S-4, filed
July 22, 1993)
3.5 Articles Supplementary, dated August 31, 1993 (incorporated herein by reference to
Exhibit 3(f) to the Company's 1993 Annual Report on Form 10-K, filed December 16,
1993)
3.6 Articles of Merger, dated July 30, 1993, between the Company and SunAmerica
Corporation (incorporated herein by reference to Exhibit 3(g) to the Company's 1993
Annual Report on Form 10-K, filed December 16, 1993)
3.7 Bylaws of the Company as revised on October 23, 1987 (incorporated herein by
reference to Exhibit 3(b) to the Company's 1987 Annual Report on Form 10-K, filed
February 26, 1988)
4.1 Senior Indenture dated as of April 15, 1993, between the Company and The First
National Bank of Chicago (incorporated by reference to Exhibit 4(h) to the Company's
Annual Report on Form 10-K, filed December 16, 1993)
4.2 Form of Subordinated Indenture dated as of April 15, 1993 between the Company and
The First National Bank of Chicago
4.3 Junior Subordinated Indenture dated as of March 15, 1995, as supplemented by a First
Supplemental Indenture dated as of March 15, 1995, between the Company and The
First National Bank of Chicago.
4.4* Declaration of Trust of SunAmerica Capital Trust II
4.5* Certificate of Trust of SunAmerica Capital Trust II
4.6* Declaration of Trust of SunAmerica Capital Trust III
4.7* Certificate of Trust of SunAmerica Capital Trust III
4.8* Declaration of Trust of SunAmerica Capital Trust IV
4.9* Certificate of Trust of SunAmerica Capital Trust IV
4.10 Form of Amended and Restated Declaration of Trust for each of SunAmerica Capital
Trust II, SunAmerica Capital Trust III and SunAmerica Capital Trust IV
4.11 Form of Preferred Security (included in Exhibit 4.10)
4.12 Form of Supplemental Indenture to be used in connection with issuance of Junior
Subordinated Debt Securities and Preferred Securities
4.13 Form of Junior Subordinated Debt Security (included in Exhibit 4.12)
4.14 Form of Preferred Securities Guarantee with respect to Preferred Securities
4.15 Form of Deposit Agreement
4.16 Form of SunAmerica Common Stock Share Certificate
5.1 Opinion of Davis Polk & Wardwell
5.2** Opinion of Piper & Marbury LLP
5.3 Opinion of Richards, Layton & Finger
12.1* Statement re: Computation of ratio of earnings to fixed charges
12.2* Statement re: Computation of ratio of earnings to combined fixed charges and
preferred stock dividends
23.1* Consent of Price Waterhouse LLP
23.2 Consent of Susan L. Harris
23.3 Consent of DaviS Polk & Wardwell (included in Exhibit 5.1)
23.4 Consent of Piper & Marbury LLP (included in Exhibit 5.2)
23.5 Consent of Richards, Layton & Finger (included in Exhibit 5.3)
24.1 Powers of Attorney for the Company (included on signature pages hereto)
24.2 Powers of Attorney for SunAmerica, as sponsor, to sign the Registration Statement on
behalf of SunAmerica Capital Trust II, SunAmerica Capital Trust III and SunAmerica
Capital Trust IV (included in Exhibits 4.4, 4.6 and 4.8, respectively)
25.1* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The
First National Bank of Chicago, as Trustee, under the Senior Indenture
25.2* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The
First National Bank of Chicago, as Trustee, under the Subordinated Indenture
25.3* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The
First National Bank of Chicago, as Trustee, under the Junior Subordinated Indenture
25.4* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The
Bank of New York, as Trustee, with respect to the Amended and Restated Declaration
of Trust of SunAmerica Capital Trust II
25.5* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The
Bank of New York, as Trustee, with respect to the Amended and Restated Declaration
of Trust of SunAmerica Capital Trust III
25.6* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The
Bank of New York, as Trustee, with respect to the Amended and Restated Declaration
of Trust of SunAmerica Capital Trust IV
25.7* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The
Bank of New York, as Trustee, under the Preferred Securities Guarantee of the
Company with respect to the Preferred Securities of SunAmerica Capital Trust II
25.8* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The
Bank of New York, as Trustee, under the Preferred Securities Guarantee of the
Company with respect to the Preferred Securities of SunAmerica Capital Trust III
25.9* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The
Bank of New York, as Trustee, under the Preferred Securities Guarantee of the
Company with respect to the Preferred Securities of SunAmerica Capital Trust IV
<FN>
_____________
*Previously filed
** To be filed by amendment
</TABLE>
Item 17. Undertakings.
The undersigned registrants hereby undertake:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Company's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this registration statement shall be deemed to be
a new registration statement relating to the securities offered thereby, and
for the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrants pursuant to the provisions referred to in Item 15
of this registration statement, or otherwise, the registrants have been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrants of expenses incurred or paid by a director, officer or controlling
person of the registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrants will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Los Angeles, State
of California, on September 27, 1995.
SUNAMERICA INC.
By: /s/ James R. Belardi
___________________________
Name: James R. Belardi
Title: Senior Vice President and
Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the registration statement has been signed below by the
following persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
* Chairman, President and September 27, 1995
- ------------------------ Chief Executive Officer
Eli Broad (Principal Executive Officer)
* Senior Vice President and September 27, 1995
- ------------------------ Treasurer (Principal
James R. Belardi Financial Officer)
* Senior Vice President and September 27, 1995
- ------------------------ Controller (Principal
Scott L. Robinson Accounting Officer)
* Director September 27, 1995
- ------------------------
Ronald J. Arnault
* Director September 27, 1995
- ------------------------
Karen Hastie-Williams
* Director September 27, 1995
- ------------------------
David O. Maxwell
* Director September 27, 1995
- ------------------------
Barry Munitz
* Director September 27, 1995
- ------------------------
Lester Pollack
* Director September 27, 1995
- ------------------------
Carl E. Reichardt
* Director September 27, 1995
- ------------------------
Richard D. Rohr
* Director September 27, 1995
- ------------------------
Sanford C. Sigoloff
* Director September 27, 1995
- ------------------------
Harold M. Williams
* By: /s/ Susan Harris
_____________________________
Susan Harris
Attorney in Fact
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, SunAmerica
Capital Trust II, SunAmerica Capital Trust III and SunAmerica Capital Trust IV
each certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Amendment No.
1 to the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Los Angeles, State of California, on
September 27, 1995.
SUNAMERICA CAPITAL TRUST II
By: SunAmerica Inc., as Sponsor
By: /s/ James R. Belardi
___________________________
Name: James R. Belardi
Title: Senior Vice President and
Treasurer
SUNAMERICA CAPITAL TRUST III
By: SunAmerica Inc., as Sponsor
By: /s/ James R. Belardi
___________________________
Name: James R. Belardi
Title: Senior Vice President and
Treasurer
SUNAMERICA CAPITAL TRUST IV
By: SunAmerica Inc., as Sponsor
By: /s/ James R. Belardi
___________________________
Name: James R. Belardi
Title: Senior Vice President and
Treasurer
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
-------
<S> <C>
1.1 Form of Underwriting Agreement (Debt)
1.2 Form of Underwriting Agreement (Equity)
1.3 Form of Underwriting Agreement (Preferred Securities)
3.1 Restated Charter of the Company, dated October 2, 1991 (incorporated herein by reference to
Exhibit 3(a) to the Company's Form 8, dated and filed October 4, 1991, amending the
Company's Annual Report on Form 10-K for the year ended September 30, 1990)
3.2 Articles Supplementary, dated June 24, 1992 (incorporated herein by reference to Exhibit 3(c) to
the Company's 1992 Annual Report on Form 10-K, filed November 30, 1992)
3.3 Amendment to the Company's Restated Articles of Incorporation, dated February 1, 1993
(incorporated herein by reference to Exhibit 1 to the Company's Form 8-K, filed February 3,
1993)
3.4 Articles Supplementary, dated March 9, 1993 (incorporated herein by reference to Exhibit 3(e)
to the Company's Registration Statement No. 33-66048 on Form S-4, filed July 22, 1993)
3.5 Articles Supplementary, dated August 31, 1993 (incorporated herein by reference to Exhibit 3(f)
to the Company's 1993 Annual Report on Form 10-K, filed December 16, 1993)
3.6 Articles of Merger, dated July 30, 1993, between the Company and SunAmerica Corporation
(incorporated herein by reference to Exhibit 3(g) to the Company's 1993 Annual Report on
Form 10-K, filed December 16, 1993)
3.7 Bylaws of the Company as revised on October 23, 1987 (incorporated herein by reference to
Exhibit 3(b) to the Company's 1987 Annual Report on Form 10-K, filed February 26, 1988)
3.8 Articles Supplementary, dated January 31, 1995 (incorporated by reference to
[_____________________]).
4.1 Senior Indenture dated as of April 15, 1993, between the Company and The First National Bank of
Chicago (incorporated by reference to Exhibit 4(h) to the Company's Annual Report on Form 10-K,
filed December 16, 1993)
4.2 Form of Subordinated Indenture dated as of April 15, 1993 between the Company and
The First National Bank of Chicago
4.3 Junior Subordinated Indenture dated as of March 15, 1995, as supplemented by a
First Supplemental Indenture dated as of March 15, 1995, between the Company and The First
National Bank of Chicago.
4.4* Declaration of Trust of SunAmerica Capital Trust II
4.5* Certificate of Trust of SunAmerica Capital Trust II
4.6* Declaration of Trust of SunAmerica Capital Trust III
4.7* Certificate of Trust of SunAmerica Capital Trust III
4.8* Declaration of Trust of SunAmerica Capital Trust IV
4.9* Certificate of Trust of SunAmerica Capital Trust IV
4.10 Form of Amended and Restated Declaration of Trust for each of
SunAmerica Capital Trust II, SunAmerica Capital Trust III and
SunAmerica Capital Trust IV
4.11 Form of Preferred Security (included in Exhibit 4.10)
4.12 Form of Supplemental Indenture to be used in connection with issuance of Junior Subordinated
Debt Securities and Preferred Securities
4.13 Form of Junior Subordinated Debt Security (included in Exhibit 4.12)
4.14 Form of Preferred Securities Guarantee with respect to Preferred Securities
4.15 Form of Deposit Agreement
4.16 Form of SunAmerica Common Stock Share Certificate
5.1 Opinion of Davis Polk & Wardwell
5.2** Opinion of Piper & Marbury LLP
5.3 Opinion of Richards, Layton & Finger
12.1* Statement re: Computation of ratio of earnings to fixed charges
12.2* Statement re: Computation of ratio of earnings to combined fixed charges and preferred stock
dividends
23.1* Consent of Price Waterhouse LLP
23.2 Consent of Susan L. Harris
23.3 Consent of Davis Polk & Wardwell (included in Exhibit 5.1)
23.4 Consent of Piper & Marbury LLP (included in Exhibit 5.2)
23.5 Consent of Richards, Layton & Finger (included in Exhibit 5.3)
24.1 Powers of Attorney for the Company (included on signature pages hereto)
24.2 Powers of Attorney for SunAmerica, as sponsor, to sign the Registration Statement on behalf of
SunAmerica Capital Trust II, SunAmerica Capital Trust III and SunAmerica Capital Trust IV
(included in Exhibits 4.4, 4.6 and 4.8, respectively)
25.1* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee, under the Senior Indenture
25.2* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee, under the Subordinated Indenture
25.3* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, as Trustee, under the Junior Subordinated Indenture
25.4* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of
New York, as Trustee, with respect to the Amended and Restated Declaration of Trust of
SunAmerica Capital Trust II
25.5* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of
New York, as Trustee, with respect to the Amended and Restated Declaration of Trust of
SunAmerica Capital Trust III
25.6* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of
New York, as Trustee, with respect to the Amended and Restated Declaration of Trust of
SunAmerica Capital Trust IV
25.7* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of
New York, as Trustee, under the Preferred Securities Guarantee of the Company with respect to
the Preferred Securities of SunAmerica Capital Trust II
25.8* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of
New York, as Trustee, under the Preferred Securities Guarantee of the Company with respect to
the Preferred Securities of SunAmerica Capital Trust III
25.9* Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of
New York, as Trustee, under the Preferred Securities Guarantee of the Company with respect to
the Preferred Securities of SunAmerica Capital Trust IV
<FN>
__________
* Previously filed.
** To be filed by amendment
</TABLE>
FORM OF DEBT UNDERWRITING AGREEMENT
___________, 199_
SunAmerica Inc.
1 SunAmerica Center
Century City
Los Angeles, California 90067-6022
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
SunAmerica Inc., a Maryland corporation (the "Company"), proposes to issue and
sell [Currency and Principal Amount] aggregate initial offering price of [Full
title of Debt Securities] (the "Debt Securities")(1) [and ____ warrants (the
"Debt Warrants") to purchase [Currency and Principal Amount] aggregate initial
offering price of its [title of debt securities] (the "Debt Warrant
Securities")]. [(The Debt Securities and the Debt Warrants, but not the Debt
Warrant Securities, are collectively referred to herein as the "Offered
Securities.")](2) The Debt Securities will be issued pursuant to the
provisions of a [Senior] [Subordinated] [Junior Subordinated] Indenture
dated as of _______________, 199_ (the "Indenture") between the Company and
The First National Bank of Chicago, as Trustee (the "Trustee"), [and the
Debt Warrants will be issued pursuant to the provisions of a Debt Warrant
Agreement dated as of _________________, 199_ (the "Debt Warrant
Agreement") between the Company and _______________, as Debt Warrant
Agent].
_________
(1) If there is a green shoe, (i) redefine "Debt Securities" as "Firm
Securities", (ii) add description and definition of "Additional Securities"
and (iii) redefine "Debt Securities" to include "Firm Securities" and
"Additional Securities". See form of SunAmerica Equity Underwriting
Agreement.
_________
(2) If no Debt Warrants are being issued, replace this sentence with the
following sentence:
(The Debt Securities are also referred to herein as the "Offered
Securities.")
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the respective principal amounts
of Debt [Firm] Securities [and numbers of Debt Warrants] set forth below
opposite their names at a purchase price of ____% of the principal amount of
Debt [Firm] Securities [, plus accrued interest, if any, from [Date of Offered
Securities] to the date of payment and delivery] [and at a purchase price of
$____ per Debt Warrant](3):
_________
(3) If there is a green shoe, add paragraph regarding agreement to sell
Additional Securities. See form of SunAmerica Equity Underwriting Agreement.
Principal Amount of
Name Debt [Firm] Securities
- ----------------------- ----------------------
[Insert syndicate list]
Total . . . . . .
===========
Number of Debt
Name Warrants
- ----------------------- --------------
[Insert syndicate list]
Total . . . . . .
===========
[The principal amount of Debt Securities and number of Debt
Warrants to be purchased by the several Underwriters shall be reduced by the
aggregate principal amount of Debt Securities and number of Debt Warrants sold
pursuant to Delayed Delivery Contracts.]
The Underwriters will pay for the Offered [Firm] Securities
[(less any Offered [Firm] Securities sold pursuant to Delayed Delivery
Contracts)] upon delivery thereof at [office] at ______ a.m. (New York time)
on ___________, 199_, or at such other time, not later than 5:00 p.m. (New
York time) on __________, 199_, as shall be designated by the Manager. The
time and date of such payment and delivery are hereinafter referred to as
the Closing Date.(4)
- ----------
(4) If there is a green shoe, add paragraph regarding timing of closing for
Additional Securities and definition of "Option Closing Date". See form of
SunAmerica Equity Underwriting Agreement.
The Offered Securities shall have the terms set forth in the
Prospectus dated _________ __, 199_, and the Prospectus Supplement dated
________ __, 199_, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)]
Form and Denomination:
Redemption Provisions:
Conversion Provisions:
Exchange Provisions:
Sinking Fund Provisions:
[Other Terms:]
Terms of Debt Warrants
[Number of Debt Warrants issued
with each $__________ principal
amount of Debt Securities:]
[Detachable Date:]
Exercise Date:
Expiration Date:
Exercise Price:
Principal amount of Debt Warrant
Securities purchasable upon
exercise of one Debt Warrant:
Form:
[Other Terms:]
Terms of Debt Warrant Securities
Maturity Date:
Interest Rate:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)]
Form and Denomination:
Redemption Provisions:
Conversion Provisions:
Exchange Provisions:
Sinking Fund Provisions:
[Other Terms]:
[The commission to be paid to the Underwriters in respect of
the Offered Securities purchased pursuant to delayed delivery contracts
arranged by the Underwriters shall be ___% of the principal amount of the Debt
Securities so purchased [and $____ per Debt Warrant so purchased].]
[Additional provisions.](5)
- ----------
(5) If there is to be a "lock-up" of Company securities, add corresponding
paragraph from form of SunAmerica Equity Underwriting Agreement.
All provisions contained in the document entitled SunAmerica
Inc. Underwriting Agreement Standard Provisions (Debt Securities and Warrants
to Purchase Debt Securities) dated September __, 1995, a copy of which is
attached hereto, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, except that (i) if any term
defined in such document is otherwise defined herein, the definition set forth
herein shall control, (ii) all references in such document to, and all
provisions relating to, a type of security that is not an Offered Security
shall not be deemed to be a part of this Agreement, (iii) if the Offered
Securities do not include Debt Warrants, then all references in such document
to Debt Warrant Securities, and all provisions in such document relating to
Debt Warrants and Debt Warrant Securities, shall not be deemed to be a part of
this Agreement, and (iv) all references in such document to, and all
provisions in such document relating to, a type of agreement that has not been
entered into in connection with the transactions contemplated hereby shall not
be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
____________________________
____________________________
____________________________
Acting severally on behalf of themselves and the
several Underwriters named herein
By: _______________________
_______________________
By: _______________________
Name:
Title:
Accepted:
SUNAMERICA INC.
By: ______________________
Name:
Title:
SUNAMERICA INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES AND WARRANTS
TO PURCHASE DEBT SECURITIES)
September __, 1995
From time to time, SunAmerica Inc., a Maryland corporation (the
"Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement").
The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a
prospectus, relating to the Offered Securities and Debt Warrant Securities
and has filed with, or transmitted for filing to, or shall promptly
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the
Offered Securities and the Debt Warrant Securities pursuant to Rule 424
under the Securities Act of 1933, as amended (the "Securities Act"). The
term "Registration Statement" means such registration statement, including
the exhibits thereto, as amended to the date of this Agreement. The term
"Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with
the Prospectus Supplement. The term "preliminary prospectus" means a
preliminary prospectus supplement specifically relating to the Offered
Securities and the Debt Warrant Securities, together with the Basic
Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus" and
"preliminary prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement" and "amendment"
or "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to
the date of the Basic Prospectus by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
The term "Contract Securities" means the Offered Securities to
be purchased pursuant to the delayed delivery contracts substantially in the
form of Schedule I hereto, with such changes therein as the Company may
approve (the "Delayed Delivery Contracts"). The term "Underwriters'
Securities" means the Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents
and warrants to each of the Underwriters that:
(a) The Registration Statement (including the most recent
post-effective amendment thereto, if any) has been declared effective by the
Commission; no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending before
or threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective,
did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Registration Statement,
since the later of the date it became effective and the date of the most
recent post-effective amendment, if any, will not fail to reflect any facts
or events which individually or in the aggregate represent a fundamental
change in the information set forth in the Registration Statement as of
such date, (iii) the Registration Statement and the Prospectus comply, and,
as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iv) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this Section 1(b) do not apply (A) to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Manager expressly for use therein or (B) to
that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), of the Trustee.
(c) This Agreement has been duly authorized, executed and
delivered by the Company.
(d) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(e) The Debt Warrant Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(f) The Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company, enforceable in accordance with their respective terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(g) The Offered Securities and the Debt Warrant Securities
have been duly authorized and, when executed and authenticated in accordance
with the provisions of the Indenture or the Debt Warrant Agreement, as the
case may be, and delivered to and paid for (A) by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of the
Underwriters' Securities, or by institutional investors in accordance with the
terms of the Delayed Delivery Contracts, in the case of the Contract
Securities and (B) upon the exercise of Debt Warrants pursuant to the Debt
Warrant Agreement, in the case of the Debt Warrant Securities, will be
entitled to the benefits of the Indenture or the Debt Warrant Agreement, as
the case may be, and will be valid and binding obligations of the Company, in
each case enforceable in accordance with their respective terms except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration, if
any, and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Offered Securities, the Debt Warrant Securities, the Delayed
Delivery Contracts and the Debt Warrant Agreement will not contravene any
provision of applicable law or the articles of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company or any
of its "significant subsidiaries" (as defined in Article 1 of Regulation S-X
under the Securities Act and hereinafter referred to as "Significant
Subsidiaries") that is material to the Company and its subsidiaries, taken as
a whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Significant Subsidiary, and
no consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, the Indenture, the Offered Securities,
the Debt Warrant Securities, the Delayed Delivery Contracts or the Debt
Warrant Agreement, except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Offered Securities and Debt Warrants.
(i) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
[(j) The [name of security into which the Debt Securities [and
Debt Warrant Securities] are convertible], initially reserved for issuance
upon conversion of the Debt Securities [and Debt Warrant Securities] (the
"Underlying Securities") have been duly authorized and reserved for issuance;
(k) When the Underlying Securities are issued upon conversion
of the Debt Securities [and Debt Warrant Securities] in accordance with the
terms of the Debt Securities [and Debt Warrant Securities], such Underlying
Securities will be validly issued, fully paid and non-assessable and will not
be subject to any preemptive or other right to subscribe for or purchase such
Underlying Securities.](6)
_________
(6) Paragraphs (j) and (k) should be included if the Offered Securities
will be convertible.
2. Delayed Delivery Contracts. If the Prospectus provides for
sales of Offered Securities pursuant to Delayed Delivery Contracts, the
Company hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions set forth in
the Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery
Contracts may be entered into only with institutional investors approved by
the Company of the types set forth in the Prospectus. On the Closing Date,
the Company will pay to the Manager as compensation for the accounts of the
Underwriters the commission set forth in the Underwriting Agreement in respect
of the Contract Securities. The Underwriters will not have any responsibility
in respect of the validity or the performance of any Delayed Delivery
Contracts.
If the Company executes and delivers Delayed Delivery Contracts
with institutional investors, the aggregate principal amount of Offered
Securities to be purchased by the several Underwriters shall be reduced by the
aggregate principal amount of Contract Securities; such reduction shall be
applied to the commitment of each Underwriter pro rata in proportion to the
principal amount of Offered Securities set forth opposite such Underwriter's
name in the Underwriting Agreement, except to the extent that the Manager
determines that such reduction shall be applied in other proportions and so
advises the Company; provided, however, that the total principal amount of
Offered Securities to be purchased by all Underwriters shall be the aggregate
principal amount set forth above, less the aggregate principal amount of
Contract Securities.
3. Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Underwriters' Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Underwriters' Securities are set forth in the
Prospectus.
4. Purchase and Delivery. Except as otherwise provided in
this Section 4, payment for the Underwriters' Securities shall be made by
certified or official bank check or checks payable to the order of the Company
in New York Clearing House or similar next-day funds at the time and place set
forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Underwriters'
Securities, registered in such names and in such denominations as the Manager
shall request in writing not less than one full business day prior to the date
of delivery, with any transfer taxes payable in connection with the transfer
of the Underwriters' Securities to the Underwriters duly paid.
Delivery on the Closing Date [or Option Closing Date](7) of any
Underwriters' Securities that are (i) Debt Securities in bearer form shall be
effected by delivery of a single temporary global Debt Security without
coupons (the "Global Debt Security") evidencing the Offered Securities that
are Debt Securities in bearer form and (ii) Debt Warrants in bearer form shall
be effected only by delivery of a single permanent global Debt Warrant (the
"Global Debt Warrant") evidencing the Offered Securities that are Debt
Warrants in bearer form, in each case to a common depositary for Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euro-clear System ("Euro-clear"), and for Centrale de Livraison de Valeurs
Mobilieres S.A. ("CEDEL") for credit to the respective accounts at Euro-clear
or CEDEL of each Underwriter or to such other accounts as such Underwriter may
direct. Any Global Debt Security or Global Debt Warrant shall be delivered to
the Manager not later than the applicable Closing Date, against payment of
funds to the Company in the net amount then due to the Company for such Global
Debt Security or Global Debt Warrant, as the case may be, by the method and in
the form set forth in the Underwriting Agreement. The Company shall cause
definitive Debt Securities in bearer form to be prepared and delivered in
exchange for such Global Debt Security in such manner and at such time as may
be provided in or pursuant to the Indenture; provided, however, that the
Global Debt Security shall be exchangeable for definitive Debt Securities in
bearer form only on or after the applicable date specified for such purpose in
the Prospectus. Debt Warrants in bearer form shall be evidenced only by a
Global Debt Warrant until their expiration.
- ---------
(7) Include if a green shoe is to be offered to Underwriters.
5. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date, there shall not
have occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations,
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus.
(c) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (b) above
and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the obligations on its part to be
performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date
opinions of Piper & Marbury, Maryland counsel to the Company, Susan
L. Harris, Esq., Vice President and General Counsel--Corporate
Affairs for the Company, and Davis Polk & Wardwell, special counsel
to the Company, dated the Closing Date, to the effect set forth in
Exhibits A, B and C, respectively. In giving such opinion, Ms.
Harris may rely, as to matters governed by laws other than the laws
of the State of California and the federal law of the United States of
America, on an opinion or opinions of Davis Polk & Wardwell and Piper
& Marbury, and Davis Polk & Wardwell may rely, as to matters governed
by laws other than the laws of the State of New York and the federal
law of the United States of America, on an opinion of Piper &
Marbury, in each case so long as such opinion shall be dated the
Closing Date and in form and substance satisfactory to the Manager,
and shall expressly permit the Underwriters to rely thereon as if
such opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an
opinion of special counsel for the Underwriters (the selection of
whom shall be approved by the Company), dated the Closing Date, to
the effect set forth in paragraphs (ii) and (iii) [and (v)
and (vi)](8) in Exhibit A and paragraphs (i) through (vii) in Exhibit
C. In giving such opinion, such counsel may rely, as to matters
governed by laws other than the federal law of the United States of
America, on an opinion or opinions of local counsel satisfactory to
the Manager, so long as each such opinion shall be dated the Closing
Date and in form and substance satisfactory to the Manager, and shall
expressly permit the Underwriters to rely thereon as if such opinion
were addressed to Underwriters.
_________
(8) References to be included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory
to the Manager, from the Company's independent public accountants,
containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus.
[The several obligations of the Underwriters to purchase
Additional Securities hereunder are subject to delivery to the Manager on the
Option Closing Date of such opinions, certificates and documents contemplated
by this Section 5 as such Manager shall reasonably request relating to the
issuance of the Additional Securities.](9)
_________
(9) Include if a green shoe is to be offered to Underwriters.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement
as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities,
to furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement
to which the Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as the Prospectus is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, forthwith
to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters, and to the dealers (whose names and addresses
the Manager will furnish to the Company) to which Offered Securities
may have been sold by the Manager on behalf of the Underwriters and
to any other dealer upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws or insurance
securities laws of such jurisdictions as the Manager shall reasonably
request and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with
any review of the offering of the Offered Securities by the National
Association of Securities Dealers, Inc.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning
statement covering a twelve month period beginning on the first day
of the first full fiscal quarter after the date of this Agreement,
which earning statement shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations of the Commission
thereunder.
(f) During the period mentioned in paragraph (c) above, to
advise the Underwriters promptly of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceeding for that
purpose.
7. Covenants of the Underwriters.
(A) Each of the several Underwriters represents and agrees
with the Company that:
(a) except to the extent permitted under U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not
offered or sold, and during the restricted period will not offer
or sell, Debt Securities in bearer form (including any Debt
Security in global form that is exchangeable for Debt Securities
in bearer form) to a person who is within the United States or its
possessions or to a United States person and (ii) it has not
delivered and will not deliver within the United States or its
possessions definitive Debt Securities in bearer form that are
sold during the restricted period;
(b) it has, and throughout the restricted period will have, in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Debt Securities in bearer
form are aware that such Debt Securities may not be offered or sold
during the restricted period to a person who is within the United
States or its possessions or to a United States person, except as
permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with
their original issuance and if it retains Debt Securities in bearer
form for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Securities in bearer
form for the purpose of offering or selling such Debt Securities
during the restricted period, it will either (i) obtain from such
affiliate for the benefit of the Company the representations and
agreements contained in clauses (a), (b) and (c) or (ii) repeat and
confirm the representations and agreements contained in clauses (a),
(b) and (c) on such affiliate's behalf and obtain from such affiliate
the authority to so obligate it;
(e) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (a), (b), (c) and
(d) from any person other than its affiliate with whom it enters into
a written contract, as defined in U.S. Treas. Reg. Section 1.163-
5(c)(2)(i)(D)(4) for the offer or sale during the restricted period
of Debt Securities in bearer form; and
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities
may be offered, sold, resold or delivered.
All other terms used in the preceding paragraph have the meaning given to them
by the U.S. Internal Revenue Code (the "Code") and regulations thereunder,
including the D Rules. The restricted period is defined at U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D)(7).
(B) Each of the several Underwriters represents and agrees
with the Company that:
(a) except to the extent permitted under the D Rules, it has
not offered or sold, and will not offer or sell at any time, Debt
Warrants in bearer form to a person who is within the United States
or its possessions or to a United States person;
(b) it has in effect procedures reasonably designed to ensure
that its employees or agents who are directly engaged in selling Debt
Warrants in bearer form are aware that such Debt Warrants may not be
offered or sold at any time to a person who is within the United
States or its possessions or to a United States person, except as
permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt
Warrants in bearer form for purposes of resale in connection with
their original issuance and if it retains Debt Warrants in bearer
form for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Warrants in bearer
form for the purpose of offering or selling such Debt Warrants, it
will either (i) obtain from such affiliate for the benefit of the
Company the representations and agreements contained in clauses (a),
(b) and (c) or (ii) repeat and confirm the representations and
agreements contained in clauses (a), (b) and (c) on such affiliate's
behalf and obtain from such affiliate the authority to so obligate
it;
(e) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (a), (b), (c) and
(d) from any person other than its affiliate with whom it enters into
a written contract, as defined in U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(4) for the offer or sale of Debt Warrants in
bearer form; and
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Warrants may
be offered, sold, resold or delivered.
Terms used in the preceding paragraph have the meaning given to them by the
Code and regulations thereunder, including the D Rules.
8. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities, joint or several (including, without
limitation, any legal or other expenses reasonably incurred by any Underwriter
or any such controlling person in connection with defending or investigating
any such action or claim), caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information furnished to the Company by any Underwriter in writing
through the Manager expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting
such losses, claims, damages or liabilities purchased Offered Securities, Debt
Warrant Securities or Debt Warrants, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented, if
the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to such purchase, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities. This indemnity
will be in addition to any liability which the Company may otherwise have.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only to the extent that any untrue statement
or omission or alleged untrue statement or omission was made in reliance upon
and in conformity with information furnished to the Company by any Underwriter
in writing through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto. This indemnity will be in addition to any liability
which the Underwriters may otherwise have.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager,
in the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. 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.
If the indemnification provided for in the first or second
paragraph in this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the one
hand and of the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this
Section 8 are several in proportion to the respective principal amounts of
Offered Securities purchased by each of such Underwriters and not joint.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 8 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 the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 8 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution provisions contained in this
Section 8 and the representations and warranties of the Company contained
herein shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its directors or officers or any person controlling the
Company and (iii) acceptance of and payment for any of the Offered Securities.
9. Termination. This Agreement shall be subject to
termination, by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on
or by, as the case may be, the New York Stock Exchange or the American Stock
Exchange, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse, or (iv) a general moratorium on commercial
banking activities in New York shall have been declared by either federal or
New York State authorities, and (b) in the case of any of the events specified
in clauses (a)(i) through (iii), such event, singly or together with any other
such event, makes it, in the judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
10. Defaulting Underwriters. If, on the Closing Date [or the
Option Closing Date, as the case may be,](10), any one or more of the
Underwriters shall fail or refuse to purchase Underwriters' Securities that it
has or they have agreed to purchase hereunder on such date, and the aggregate
amount of Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Underwriters' Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of Underwriters' Securities set forth opposite
their respective names above bears to the aggregate amount of Underwriters'
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Underwriters' Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such amount
of Underwriters' Securities without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse
to purchase Underwriters' Securities to be purchased on such date and the
aggregate amount of Underwriters' Securities with respect to which such
default occurs is more than one-tenth of the aggregate amount of Underwriters'
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Underwriters' Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Manager or the Company shall have the
right to postpone the Closing Date but in no event for longer then seven days,
in order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be effected.
[If, on the Option Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Underwriters' Securities to be purchased on such date and
the aggregate amount of Underwriters' Securities with respect to which such
default occurs is more than one-tenth of the aggregate amount of Underwriters'
Securities to be purchased on such date, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase
Underwriters' Securities to be purchased on such date or (ii) purchase not
less than the amount of Underwriters' Securities that such non-defaulting
Underwriters would have been obligated to purchase on such date in the absence
of such default.](11) Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
- ---------
(10)Applicable if a green shoe is offered to Underwriters.
(11) Applicable if a green shoe is offered to Underwriters.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities.
Nothing in the foregoing sentence shall limit the Company's obligations to pay
expenses as provided in Section 6.
11. Miscellaneous. The Underwriting Agreement may be signed
in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same agreement.
Exhibit A
Opinion of Maryland Counsel for the Company
The opinion of Piper & Marbury, Maryland counsel for the
Company, to be delivered pursuant to Section 5(d) of the Underwriting
Agreement, shall be limited to the laws of the State of Maryland and shall be
to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws under the
State of Maryland; and the Company has the corporate power under the
laws of the State of Maryland and under its charter to own, lease and
operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus.
(ii) the Underwriting Agreement, the Indenture, the Debt
Warrant Agreement and the Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company;
(iii) the Offered Securities and the Debt Warrant Securities
have been duly authorized by the Company; and
(iv) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Indenture, the Offered Securities, the Debt Warrant
Securities, the Delayed Delivery Contracts and the Debt Warrant
Agreement will not contravene any provision of any material
applicable law or the articles of incorporation or by-laws of the
Company (excluding the securities or Blue Sky laws of the State of
Maryland, as to which such counsel need not express any opinion).
[(v) the [name of security into which the Debt Securities [and
Debt Warrant Securities] are convertible], initially reserved for
issuance upon conversion of the Debt Securities [and Debt Warrant
Securities] (the "Underlying Securities") have been duly authorized
and reserved for issuance; and
(vi) when the Underlying Securities are issued upon conversion
of the Debt Securities [and Debt Warrant Securities] in accordance
with the terms of the Debt Securities [and Debt Warrant Securities],
such Underlying Securities will be validly issued, fully paid and
non-assessable and will not be subject to any preemptive or other
right to subscribe for or purchase such Underlying Securities.](12)
- ---------
(12) Paragraphs (v) and (vi) should be included if the Offered Securities
are convertible.
Exhibit B
Opinion of Counsel for the Company
The opinion of Susan L. Harris, Vice President and General
Counsel--Corporate Affairs of the Company, to be delivered pursuant to Section
5(d) of the Underwriting Agreement shall be to the effect that:
(i) to the best of such counsel's knowledge and information,
the Company is duly qualified as a foreign corporation to transact
business and in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify or
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, on the earnings or business
affairs of the Company and its subsidiaries, taken as a whole.
(ii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Indenture, the Offered Securities, the Debt Warrant
Securities, the Delayed Delivery Contracts and the Debt Warrant
Agreement will not contravene any provision of any material
applicable law or the articles of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company
or any Significant Subsidiary that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any Significant Subsidiary, and no consent, approval,
authorization or order of or qualification with any governmental body
or agency is required for the performance by the Company of its
obligations under the Underwriting Agreement, the Indenture, the
Offered Securities, the Debt Warrant Securities, the Delayed Delivery
Contract or the Debt Warrant Agreement, except such as may be
required by the securities or Blue Sky laws or insurance securities
laws of the various states in connection with the offer and sale of
the Offered Securities and the Debt Warrants;
(iii) to the best of such counsel's knowledge and information,
there are no legal or governmental proceedings pending or threatened
or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus that are not described as required;
(iv) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference
in the Prospectus (except for financial statements, supporting
schedules and other financial data included or incorporated by
reference therein, as to which such counsel need not express any
opinion) appeared on its face to be appropriately responsive in all
material respects to the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (2)
believes that (except for financial statements, supporting schedules
and other financial data included or incorporated by reference
therein, as to which such counsel need not express any belief, and
except for that part of the Registration Statement that constitutes
the Form T-1 heretofore referred to) each part of the Registration
Statement, when such part became effective did not, and as of the
date such opinion is delivered, does not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (3) is of the opinion that the Registration Statement and
Prospectus (except for financial statements, supporting schedules and
other financial data included or incorporated by reference therein, as
to which such counsel need not express any opinion, and except for
that part of the Registration Statement that constitutes the Form T-1
heretofore referred to) appear on their face to be appropriately
responsively in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (4) believes that (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein, as to which such counsel need not
express any belief) the Prospectus as of the date such opinion is
delivered does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; and
(v) to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement is in
effect under the Securities Act, and no proceedings for such purpose
are pending before or threatened by the Commission.
With respect to the foregoing paragraph (iv), such counsel may
state that her opinion and belief are based upon her participation in the
preparation of the Registration Statement and Prospectus and any amendments,
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified.
Exhibit C
Opinion of Special Counsel for the Company
The opinion of Davis Polk & Wardwell, special counsel to the
Company, to be delivered pursuant to Section 5(d) of the Underwriting
Agreement shall be to the effect that:
(i) the Indenture has been duly qualified under the Trust
Indenture Act and, assuming due authorization, execution and delivery
by the Company, is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (b) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(ii) assuming due authorization, execution and delivery by the
Company, the Debt Warrant Agreement is a valid and binding agreement
of the Company, enforceable in accordance with its terms except as (a)
the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (b) the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(iii) assuming due authorization, execution and delivery by
the Company, the Delayed Delivery Contracts are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(iv) when executed and authenticated in accordance with the
provisions of the Indenture or the Debt Warrant Agreement, as the
case may be, and delivered to and paid for (A) by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case
of Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the
case of the Contract Securities and (B) upon the exercise of Debt
Warrants pursuant to the Debt Warrant Agreement, in the case of the
Debt Warrant Securities, the Offered Securities and the Debt Warrant
Securities will be entitled to the benefits of the Indenture or the
Debt Warrant Agreement, as the case may be, and will be valid and
binding obligations of the Company, in each case enforceable in
accordance with their respective terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (b) rights of
acceleration, if any, and the availability of equitable remedies may
be limited by equitable principles of general applicability;
(v) the statements in the Prospectus under the captions
"Description of Debt Securities," "Description of Debt Warrants," and
"Plan of Distribution," in each case insofar as such statements
constitute summaries of the legal matters or documents or proceedings
referred to therein, fairly present the information called for with
respect to such legal matters, documents or proceedings and fairly
summarize the matters referred to therein;
(vi) such counsel (1) believes that (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein and any of the documents
incorporated by reference therein, as to which such counsel need not
express any belief, and except for that part of the Registration
Statement that constitutes the Form T-1 heretofore referred to) each
part of the Registration Statement, when such part became effective
did not, and as of the date such opinion is delivered, does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (2) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein and any of the documents
incorporated or deemed to be incorporated by reference therein, as to
which such counsel need not express any opinion, and except for that
part of the Registration Statement that constitutes the Form T-1
heretofore referred to) appear on their face to be appropriately
responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (3) believes that (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein and any of the documents
incorporated or deemed to be incorporated by reference therein, as to
which such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(vii) to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement is in
effect under the Securities Act, and no proceedings for such purpose
are pending before or threatened by the Commission.
With respect to the foregoing paragraph (vi), such counsel may
state that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the documents incorporated by
reference) and upon review and discussion of the contents thereof
(including documents incorporated by reference) but are without independent
check or verification, except as specified.
Schedule I
FORM OF DELAYED DELIVERY CONTRACT
________, 199_
Dear Sirs:
The undersigned hereby agrees to purchase from SunAmerica Inc.,
a Maryland corporation (the "Company"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule A annexed hereto
(the "Securities"), offered by the Company's Prospectus dated ______________,
199_ and Prospectus Supplement dated ________________, 19__, receipt of copies
of which are hereby acknowledged, at a purchase price stated in Schedule A and
on the further terms and conditions set forth in this Agreement. The
undersigned does not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Company Securities in
the principal amounts on the delivery dates set forth in Schedule A. Each
such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House or similar
next-day funds at the office of ______________________________, New York,
N.Y., at 10:00 A.M. (New York time) on the Delivery Date, upon delivery to
the undersigned of the Securities to be purchased by the undersigned on the
Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned as its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by
any purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested
that the Company sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set forth below.
This will become a binding agreement, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
Yours very truly,
___________________________
(Purchaser)
By ________________________
___________________________
(Title)
___________________________
___________________________
(Address)
Accepted:
SUNAMERICA INC.
By ________________________
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed is as
follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
----- --------------------- ----------
________________ ____________________ ___________
SCHEDULE A
Securities:
Principal Amounts to be Purchased:
Purchase Price:
Delivery Dates:
Exhibit 1.2
FORM OF EQUITY UNDERWRITING AGREEMENT
___________, 199_
SunAmerica Inc.
1 SunAmerica Center
Century City
Los Angeles, California 90067-6022
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
SunAmerica Inc., a Maryland corporation (the "Company"), proposes to issue and
sell [____________________] of [title of securities] (the "Firm Securities")
[and not more than [___] of its [title of securities] (the "Additional
Securities"), if any, to the extent we shall have determined to exercise, on
behalf of the Underwriters, the right to purchase such Additional Securities
granted to the Underwriters hereby] [and, together with each such Equity
Security or Additional Security, as the case may be, ____ warrants (the "Equity
Warrants") to purchase [___________] of its [title of securities] (the "Equity
Warrant Securities")]. The Firm Securities and the Additional Securities are
hereinafter collectively referred to herein as the "Equity Securities". [(The
Equity Securities and the Equity Warrants, but not the Equity Warrant
Securities, are collectively referred to herein as the "Offered
Securities.")](1)
_______________
(1) If no Equity Warrants are being issued, replace this sentence with the
following sentence:
(The Equity Securities are also referred to herein as the "Offered
Securities.")
[The Equity Warrants will be issued pursuant to the provisions
of an Equity Warrant Agreement dated as of _________________, 199_ (the
"Equity Warrant Agreement") between the Company and _______________, as Equity
Warrant Agent.](2)
_______________
(2) If Depositary Shares are to be sold, include the following paragraph and
make corresponding additions to representations, warranties and opinions:
"Each Depositary Share will represent [ ] of a share of
[title of securities] of the Company. The Equity Securities will,
when issued, be deposited by the Company against delivery of
Depositary Receipts ("Depositary Receipts) to be issued by [
], as depositary (the "Depositary"), under a Deposit Agreement
dated as of [_______________], 199[_] (the "Deposit Agreement") among
the Company, the Depositary and the holders from time to time of the
Depositary Receipts issued thereunder. Each Depositary Receipt will
represent one or more Depositary Shares."
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the respective number of Firm
Securities [and corresponding numbers of Equity Warrants] set forth below
opposite their names at a purchase price per share of $______ [and at a
purchase price of $____ per Equity Warrant]:
Number of shares of
Name Firm Securities
---- --------------------
[Insert syndicate list]
Total . . . . . .
===========
Number of Equity
Name Warrants
---- ----------------
[Insert syndicate list]
Total . . . . . .
===========
[On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to sell to the Underwriters the Additional Securities [and a corresponding
number of additional Equity Warrants], and the Underwriters shall have a
one-time right to purchase, severally and not jointly, all or a part of the
Additional Securities at the purchase price per share listed above [and a
corresponding number of additional Equity Warrants at the purchase price per
Equity Warrant listed above]. Additional Securities [and corresponding
additional Equity Warrants] may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Securities. If any Additional Securities [and corresponding additional Equity
Warrants] are to be purchased, each Underwriter agrees, severally and not
jointly, to purchase the number of Additional Securities [and corresponding
additional Equity Warrants] (subject to such adjustments to eliminate
fractional securities as you may determine) that bears the same proportion to
the total number of Additional Securities [and corresponding additional Equity
Warrants] to be purchased as the amount of Firm Securities set forth above
opposite the name of such Underwriter bears to the total amount of Firm
Securities.]
[The number of Equity Securities and number of Equity Warrants
to be purchased by the several Underwriters shall be reduced by the aggregate
number of Equity Securities and number of Equity Warrants sold pursuant to
Delayed Delivery Contracts.]
The Underwriters will pay for the Firm Securities [and
corresponding Equity Warrants] [(less any such securities sold pursuant to
Delayed Delivery Contracts)] upon delivery thereof at [office] at ______ a.m.
(New York time) on ___________, 199_, or at such other time, not later than
5:00 p.m. (New York time) on __________, 199_, as shall be designated by the
Manager. The time and date of such payment and delivery are hereinafter
referred to as the "Closing Date".
[The Underwriters will pay for any Additional Securities [and
corresponding additional Equity Warrants] [(less any such securities sold
pursuant to Delayed Delivery Contracts)] upon delivery thereof at [office] at
[_____]a.m. (New York time), on such date (which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date nor later
than the date ten business days after the giving of the notice hereinafter
referred to) as shall be designated in a written notice from the Manager to the
Company of our determination, on behalf of the Underwriters, to purchase an
aggregate number, specified in said notice, of Additional Securities [together
with a corresponding aggregate number of additional Equity Warrants], as shall
be designated in writing by us. Such notice of determination to exercise the
option to purchase Additional Securities [and corresponding additional Equity
Warrants] and of the designated Option Closing Date may be given by the Manager
at any time within 30 days after the date of this Agreement. The designated
time and date of such payment and delivery are hereinafter referred to as the
"Option Closing Date".]
The Offered Securities shall have the terms set forth in the
Prospectus dated _________ __, 199_, and the Prospectus Supplement dated
________ __, 199_, including the following:
Terms of Equity Securities
Aggregate Number of
Firm Securities:
Aggregate Number of
Additional Securities:
Purchase Price:
Closing Date:
Option Closing Date:
Form:
Redemption Provisions:
Conversion Provisions:
Exchange Provisions:
Dividend Provisions:
Liquidation Preferences:
Lock-Up Securities:
Lock-Up Period:
[Depositary Share Provisions:]
[Other Terms:]
Terms of Equity Warrants
[Number of Equity Warrants issued
with each Firm and Additional
Security:]
Detachable Date:
Exercise Date:
Expiration Date:
Exercise Price:
Number of Equity Warrant
Securities purchasable upon
exercise of one Equity Warrant:
Anti-Dilution Provisions:
Form:
[Other Terms:]
Terms of Equity Warrant Securities
Form:
Redemption Provisions:
Conversion Provisions:
Exchange Provisions:
Dividend Provisions:
Liquidation Preferences:
Depositary Share Provisions:
[Other Terms:]
[The commission to be paid to the Underwriters in respect of
the Offered Securities purchased pursuant to Delayed Delivery Contracts
arranged by the Underwriters shall be $_____ per share of Firm or Additional
Securities so purchased [and $____ per Equity Warrant so purchased].]
[The Company hereby agrees that, without our prior written
consent, it will not, directly or indirectly, offer, sell, contract to sell or
grant any option to purchase or otherwise dispose of any shares of the
securities listed above as "Lock-Up Securities", or any securities convertible
into or exchangeable for Lock-Up Securities, for the period(s) listed above as
the "Lock-Up Period" in respect of such Lock-Up Securities; provided, however,
that such restriction shall not affect the ability of the Company or its
subsidiaries to take any such action (i) as a consequence of obligations under
securities outstanding prior to the date hereof, (ii) in connection with any
employee benefit or incentive plans of the Company or its subsidiaries or
(iii) in connection with the offering of the Offered Securities contemplated
hereby.]
All provisions contained in the document entitled SunAmerica
Inc. Underwriting Agreement Standard Provisions (Equity Securities and
Warrants to Purchase Equity Securities) dated September __, 1995, a copy of
which is attached hereto, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions had been set forth in full herein, except that (i) if
any term defined in such document is otherwise defined herein, the definition
set forth herein shall control, (ii) all references in such document to, and
all provisions relating to, a type of security that is not an Offered Security
shall not be deemed to be a part of this Agreement, (iii) if the Offered
Securities do not include Equity Warrants, then all references in such
document to Equity Warrant Securities, and all provisions in such document
relating to Equity Warrants and Equity Warrant Securities, shall not be deemed
to be a part of this Agreement, and (iv) all references in such document to,
and all provisions in such document relating to, a type of agreement that has
not been entered into in connection with the transactions contemplated hereby
shall not be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
____________________________
____________________________
____________________________
Acting severally on behalf of themselves and the
several Underwriters named herein
By: _______________________
_______________________
By: _______________________
Name:
Title:
Accepted:
SUNAMERICA INC.
By: ______________________
Name:
Title:
SUNAMERICA INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(EQUITY SECURITIES AND WARRANTS
TO PURCHASE EQUITY SECURITIES)
September __, 1995
From time to time, SunAmerica Inc., a Maryland corporation (the
"Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement").
The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a
prospectus, relating to the Offered Securities and Equity Warrant Securities
and has filed with, or transmitted for filing to, or shall promptly hereafter
file with or transmit for filing to, the Commission a prospectus supplement
(the "Prospectus Supplement") specifically relating to the Offered Securities
and the Equity Warrant Securities pursuant to Rule 424 under the Securities
Act of 1933, as amended (the "Securities Act"). The term "Registration
Statement" means such registration statement, including the exhibits thereto,
as amended to the date of this Agreement. The term "Basic Prospectus" means
the prospectus included in the Registration Statement. The term "Prospectus"
means the Basic Prospectus together with the Prospectus Supplement. The term
"preliminary prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Securities and the Equity Warrant
Securities, together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement" and "amendment" or "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Contract Securities" means the Offered Securities to
be purchased pursuant to the delayed delivery contracts substantially in the
form of Schedule I hereto, with such changes therein as the Company may
approve (the "Delayed Delivery Contracts"). The term "Underwriters'
Securities" means the Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents
and warrants to each of the Underwriters that:
(a) The Registration Statement (including the most recent
post-effective amendment thereto, if any) has been declared effective by the
Commission; no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending before
or threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Registration Statement, since the
later of the date it became effective and the date of the most recent
post-effective amendment, if any, will not fail to reflect any facts or events
which individually or in the aggregate represent a fundamental change in the
information set forth in the Registration Statement as of such date, (iii) the
Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this Section 1(b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through the Manager expressly for use therein.
(c) This Agreement has been duly authorized, executed and
delivered by the Company.
(d) The Equity Warrant Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(e) The Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company, enforceable in accordance with their respective terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(f) The Offered Securities and the Equity Warrant Securities
have been duly authorized and, when executed and delivered to and paid for (A)
by the Underwriters in accordance with the terms of the Underwriting Agreement
and the Equity Warrant Agreement, in the case of the Underwriters' Securities,
or by institutional investors in accordance with the terms of the Delayed
Delivery Contracts in the case of the Contract Securities and (B) upon the
exercise of Equity Warrants pursuant to the Equity Warrant Agreement, in the
case of the Equity Warrant Securities, will be validly issued, fully paid and
non-assessable.
(g) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Delayed Delivery Contracts and the Equity Warrant Agreement, and the issuance
and sale of the Offered Securities or the Equity Warrant Securities, will not
contravene any provision of applicable law or the articles of incorporation or
by-laws of the Company or any agreement or other instrument binding upon the
Company or any of its "significant subsidiaries" (as defined in Article 1 of
Regulation S-X under the Securities Act and hereinafter referred to as
"Significant Subsidiaries") that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
Significant Subsidiary, and no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement the Delayed
Delivery Contracts or the Equity Warrant Agreement, or the issuance and sale
of the Offered Securities or the Equity Warrant Securities, except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities and Equity
Warrants.
(h) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
[(i) The [name of security into which the Equity Securities
[and Equity Warrant Securities] are convertible], initially reserved for
issuance upon conversion of the Equity Securities [and Equity Warrant
Securities] (the "Underlying Securities") have been duly authorized and
reserved for issuance;
(j) When the Underlying Securities are issued upon conversion
of the Equity Securities [and Equity Warrant Securities] in accordance with
the terms of the Equity Securities [and Equity Warrant Securities], such
Underlying Securities will be validly issued, fully paid and non-assessable
and will not be subject to any preemptive or other right to subscribe for or
purchase such Underlying Securities.](3)
_________
(3) Paragraphs (i) and (j) should be included if the Offered Securities will be
convertible.
2. Delayed Delivery Contracts. If the Prospectus provides for
sales of Offered Securities pursuant to Delayed Delivery Contracts, the
Company hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions set forth in
the Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery
Contracts may be entered into only with institutional investors approved by
the Company of the types set forth in the Prospectus. On the Closing Date,
the Company will pay to the Manager as compensation for the accounts of the
Underwriters the commission set forth in the Underwriting Agreement in respect
of the Contract Securities. The Underwriters will not have any responsibility
in respect of the validity or the performance of any Delayed Delivery
Contracts.
If the Company executes and delivers Delayed Delivery Contracts
with institutional investors, the aggregate principal amount of Offered
Securities to be purchased by the several Underwriters shall be reduced by the
aggregate principal amount of Contract Securities; such reduction shall be
applied to the commitment of each Underwriter pro rata in proportion to the
principal amount of Offered Securities set forth opposite such Underwriter's
name in the Underwriting Agreement, except to the extent that the Manager
determines that such reduction shall be applied in other proportions and so
advises the Company; provided, however, that the total principal amount of
Offered Securities to be purchased by all Underwriters shall be the aggregate
principal amount set forth above, less the aggregate principal amount of
Contract Securities.
3. Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Underwriters' Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Underwriters' Securities are set forth in the
Prospectus.
4. Purchase and Delivery. Payment for the Offered Securities
to be purchased by the Underwriters on the Closing Date [or the Option Closing
Date, as the case may be,](4) shall be made by certified or official bank check
or checks payable to the order of the Company in New York Clearing House or
similar next-day funds at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities in certificated form,
registered in such names and in such denominations as the Manager shall
request in writing not less than one full business day prior to the date of
delivery, with any transfer taxes payable in connection with the transfer of
the Underwriters' Securities to the Underwriters duly paid.
_______________
(4) Include if a green shoe is to be offered to Underwriters.
5. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date, there shall not
have occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations,
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus.
(c) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (b) above
and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the obligations on its part to be
performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date
opinions of Piper & Marbury, Maryland counsel to the Company,
Susan L. Harris, Esq., Vice President and General Counsel--
Corporate Affairs for the Company, and Davis Polk & Wardwell,
special counsel to the Company, dated the Closing Date, to the
effect set forth in Exhibits A, B and C, respectively. In giving
such opinion, Ms. Harris may rely, as to matters governed by laws
other than the laws of the State of California and the federal law
of the United States of America, on an opinion or opinions of
Davis Polk & Wardwell and Piper & Marbury, and Davis Polk &
Wardwell may rely, as to matters governed by laws other than the
laws of the State of New York and the federal law of the United
States of America, on an opinion of Piper & Marbury, in each case
so long as such opinion shall be dated the Closing Date and in
form and substance satisfactory to the Manager, and shall
expressly permit the Underwriters to rely thereon as if such
opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an
opinion of special counsel for the Underwriters (the selection of
whom shall be approved by the Company), dated the Closing Date, to
the effect set forth in paragraphs (ii), (iii) and (iv) [and (vii)
and (viii)](5) in Exhibit A and paragraphs (i) through (iv) in
Exhibit C. In giving such opinion, such counsel may rely, as to
matters governed by laws other than the federal law of the United
States of America, on an opinion or opinions of local counsel
satisfactory to the Manager, so long as each such opinion shall be
dated the Closing Date and in form and substance satisfactory to the
Manager, and shall expressly permit the Underwriters to rely thereon
as if such opinion were addressed to Underwriters.
_______________
(5) References to be included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory
to the Manager, from the Company's independent public accountants,
containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus.
[The several obligations of the Underwriters to purchase
Additional Securities hereunder are subject to delivery to the Manager on the
Option Closing Date of such opinions, certificates and documents contemplated
by this Section 5 as such Manager shall reasonably request relating to the
issuance of the Additional Securities.](6)
_______________
(6) Include if a green shoe is to be offered to Underwriters.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement
as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities,
to furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement
to which the Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as the Prospectus is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, forthwith
to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters, and to the dealers (whose names and addresses
the Manager will furnish to the Company) to which Offered Securities
may have been sold by the Manager on behalf of the Underwriters and
to any other dealer upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws or insurance
securities laws of such jurisdictions as the Manager shall reasonably
request and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with
any review of the offering of the Offered Securities by the National
Association of Securities Dealers, Inc.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning
statement covering a twelve month period beginning on the first day
of the first full fiscal quarter after the date of this Agreement,
which earning statement shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations of the Commission
thereunder.
(f) During the period mentioned in paragraph (c) above, to
advise the Underwriters promptly of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceeding for that
purpose.
7. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities, joint or several (including, without
limitation, any legal or other expenses reasonably incurred by any Underwriter
or any such controlling person in connection with defending or investigating
any such action or claim), caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information furnished to the Company by any Underwriter in writing
through the Manager expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting
such losses, claims, damages or liabilities purchased Offered Securities,
Equity Warrant Securities or Equity Warrants, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented, if
the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to such purchase, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities. This indemnity
will be in addition to any liability which the Company may otherwise have.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only to the extent that any untrue statement
or omission or alleged untrue statement or omission was made in reliance upon
and in conformity with information furnished to the Company by any Underwriter
in writing through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto. This indemnity will be in addition to any liability
which the Underwriters may otherwise have.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager,
in the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. 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.
If the indemnification provided for in the first or second
paragraph in this Section 7 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the one
hand and of the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the respective principal amounts of
Offered Securities purchased by each of such Underwriters and not joint.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 7 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 the
immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 7 and the representations and warranties of the Company contained
herein shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its directors or officers or any person controlling the
Company and (iii) acceptance of and payment for any of the Offered Securities.
8. Termination. This Agreement shall be subject to
termination, by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on
or by, as the case may be, the New York Stock Exchange or the American Stock
Exchange, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse, or (iv) a general moratorium on commercial
banking activities in New York shall have been declared by either federal or
New York State authorities, and (b) in the case of any of the events specified
in clauses (a)(i) through (iii), such event, singly or together with any other
such event, makes it, in the judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
9. Defaulting Underwriters. If, on the Closing Date [or the
Option Closing Date, as the case may be](7), any one or more of the
Underwriters shall fail or refuse to purchase Underwriters' Securities that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of the Underwriters' Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the number of Underwriters' Securities set forth opposite
their respective names above bears to the aggregate number of Underwriters'
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Underwriters' Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 9 by a number in excess of one-ninth of such number
of Underwriters' Securities without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse
to purchase Underwriters' Securities to be purchased on such date and the
aggregate number of Underwriters' Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Underwriters'
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Underwriters' Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Manager or the Company shall have the
right to postpone the Closing Date but in no event for longer then seven days,
in order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be effected.
[If, on the Option Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Underwriters' Securities to be purchased on such date and
the aggregate number of Underwriters' Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Underwriters'
Securities to be purchased on such date, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase
Underwriters' Securities to be purchased on such date or (ii) purchase not
less than the number of Underwriters' Securities that such non-defaulting
Underwriters would have been obligated to purchase on such date in the absence
of such default.](8) Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
_______________
(7) Applicable if a green shoe is offered to Underwriters.
(8) Applicable if a green shoe is offered to Underwriters.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities.
Nothing in the foregoing sentence shall limit the Company's obligations to pay
expenses as provided in Section 6.
10. Miscellaneous. The Underwriting Agreement may be signed
in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same agreement.
Exhibit A
Opinion of Maryland Counsel for the Company
The opinion of Piper & Marbury, Maryland counsel for the
Company, to be delivered pursuant to Section 5(d) of the Underwriting
Agreement, shall be limited to the laws of the State of Maryland and shall be
to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws under the
State of Maryland; and the Company has the corporate power under the
laws of the State of Maryland and under its charter to own, lease and
operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus.
(ii) the Underwriting Agreement, the Equity Warrant Agreement
and the Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company;
(iii) the Offered Securities and the Equity Warrant Securities
have been duly authorized by the Company;
(iv) when executed and delivered to and paid for (A) by the
Underwriters in accordance with the terms of the Underwriting
Agreement and the Equity Warrant Agreement, in the case of
Underwriters' Securities, or by institutional investors in accordance
with the terms of the Delayed Delivery Contracts and the Equity
Warrant Agreement, in the case of the Contract Securities and (B)
upon the exercise of Equity Warrants pursuant to the Equity Warrant
Agreement, in the case of the Equity Warrant Securities, the Offered
Securities and the Equity Warrant Securities will be validly issued,
fully paid and non-assessable;
(v) the statements in the Prospectus under the captions
"Description of Equity Securities" and "Description of [Warrants],"
in each case insofar as such statements constitute summaries of the
legal matters or documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents or proceedings and fairly present the matters
referred to therein;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Delayed Delivery Contracts and the Equity Warrant
Agreement, and the issuance and sale of the Offered Securities or the
Equity Warrant Securities, will not contravene any provision of any
material applicable law or the articles of incorporation or by-laws
of the Company (excluding the securities or Blue Sky laws of the
State of Maryland, as to which such counsel need not express any
opinion).
[(vii) the [name of security into which the Equity Securities
[and Equity Warrant Securities] are convertible], initially reserved
for issuance upon conversion of the Equity Securities [and Equity
Warrant Securities] (the "Underlying Securities") have been duly
authorized and reserved for issuance; and
(viii) when the Underlying Securities are issued upon conversion
of the Equity Securities [and Equity Warrant Securities] in
accordance with the terms of the Equity Securities [and Equity
Warrant Securities], such Underlying Securities will be validly
issued, fully paid and non-assessable and will not be subject to any
preemptive or other right to subscribe for or purchase such
Underlying Securities.](9)
_________
(9) Paragraphs (vii) and (viii) should be included if the Offered
Securities are convertible.
Exhibit B
Opinion of Counsel for the Company
The opinion of Susan L. Harris, Vice President and General
Counsel--Corporate Affairs of the Company, to be delivered pursuant to Section
5(d) of the Underwriting Agreement shall be to the effect that:
(9)Paragraphs (vii) and (viii) should be included if the Offered Securities
are convertible.
(i) to the best of such counsel's knowledge and information,
the Company is duly qualified as a foreign corporation to transact
business and in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify or
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, on the earnings or business
affairs of the Company and its subsidiaries, taken as a whole;
(ii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Delayed Delivery Contracts and the Equity Warrant
Agreement, and the issuance and sale of the Offered Securities or the
Equity Warrant Securities, will not contravene any provision of any
material applicable law or the articles of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the
Company or any Significant Subsidiary that is material to the Company
and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Company or any Significant Subsidiary, and no consent,
approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the
Company of its obligations under the Underwriting Agreement, the
Delayed Delivery Contracts or the Equity Warrant Agreement, or the
issuance and sale of the Offered Securities or the Equity Warrant
Securities, except such as may be required by the securities or Blue
Sky laws or insurance securities laws of the various states in
connection with the offer and sale of the Offered Securities and the
Equity Warrants;
(iii) to the best of such counsel's knowledge and information,
there are no legal or governmental proceedings pending or threatened
or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus that are not described as required;
(iv) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference
in the Prospectus (except for financial statements, supporting
schedules and other financial data included or incorporated by
reference therein, as to which such counsel need not express any
opinion) appeared on its face to be appropriately responsive in all
material respects to the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (2)
believes that (except for financial statements, supporting schedules
and other financial data included or incorporated by reference
therein, as to which such counsel need not express any belief) each
part of the Registration Statement, when such part became effective
did not, and as of the date such opinion is delivered, does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (3) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein, as to which such counsel need not
express any opinion) appear on their face to be appropriately
responsively in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (4) believes that (except for financial
statements, supporting schedules and other financial data included
or incorporated by reference therein, as to which such counsel need
not express any belief) the Prospectus as of the date such opinion is
delivered does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; and
(v) to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement is in
effect under the Securities Act, and no proceedings for such purpose
are pending before or threatened by the Commission.
With respect to the foregoing paragraph, such counsel may state
that her opinion and belief are based upon her participation in the
preparation of the Registration Statement and Prospectus and any amendments,
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified.
Exhibit C
Opinion of Special Counsel for the Company
The opinion of Davis Polk & Wardwell, special counsel to the
Company, to be delivered pursuant to Section 5(d) of the Underwriting
Agreement shall be to the effect that:
(i) assuming due authorization, execution and delivery by the
Company, the Equity Warrant Agreement is a valid and binding
agreement of the Company, enforceable in accordance with its terms
except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability;
(ii) assuming due authorization, execution and delivery by the
Company, the Delayed Delivery Contracts are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(iii) the statements in the Prospectus under the caption "Plan
of Distribution," insofar as such statements constitute summaries of
the legal matters or documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents or proceedings and fairly summarize the matters
referred to therein;
(iv) such counsel (1) believes that (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein and any of the documents
incorporated by reference therein, as to which such counsel need not
express any belief) each part of the Registration Statement, when
such part became effective did not, and as of the date such opinion
is delivered, does not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (2) is of
the opinion that the Registration Statement and Prospectus (except
for financial statements, supporting schedules and other financial
data included or incorporated by reference therein and any of the
documents incorporated or deemed to be incorporated by reference
therein, as to which such counsel need not express any opinion)
appear on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder and (3) believes
that (except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein and any
of the documents incorporated or deemed to be incorporated by
reference therein, as to which such counsel need not express any
belief) the Prospectus as of the date such opinion is delivered does
not contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading; and
(v) to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement is in
effect under the Securities Act, and no proceedings for such purpose
are pending before or threatened by the Commission.
With respect to the foregoing paragraph, such counsel may
state that their opinion and belief are based upon their participation in
the preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the documents incorporated by
reference) and upon review and discussion of the contents thereof
(including documents incorporated by reference) but are without independent
check or verification,
except as specified.
Schedule I
FORM OF DELAYED DELIVERY CONTRACT
________, 199_
Dear Sirs:
The undersigned hereby agrees to purchase from SunAmerica Inc.,
a Maryland corporation (the "Company"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule A annexed hereto
(the "Securities"), offered by the Company's Prospectus dated ______________,
199_ and Prospectus Supplement dated ________________, 19__, receipt of copies
of which are hereby acknowledged, at a purchase price stated in Schedule A and
on the further terms and conditions set forth in this Agreement. The
undersigned does not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Company Securities in
the numbers and on the delivery dates set forth in Schedule A. Each such date
on which Securities are to be purchased hereunder is hereinafter referred to
as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House or similar
next-day funds at the office of ______________________________, New York,
N.Y., at 10:00 A.M. (New York time) on the Delivery Date, upon delivery to
the undersigned of the Securities to be purchased by the undersigned on the
Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned as its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by
any purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested
that the Company sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set forth below.
This will become a binding agreement, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
Yours very truly,
___________________________
(Purchaser)
By ________________________
___________________________
(Title)
___________________________
___________________________
(Address)
Accepted:
SUNAMERICA INC.
By ________________________
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed is as
follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- ---------------------- ----------
__________________ ______________________ _________________
SCHEDULE A
Securities:
Numbers of Securities to be Purchased:
Purchase Price:
Delivery Dates:
Exhibit 1.3
FORM OF PREFERRED STOCK UNDERWRITING AGREEMENT
___________, 199_
SunAmerica Capital Trust [_]
c/o SunAmerica Inc.
1 SunAmerica Center
Century City
Los Angeles, California 90067-6022
SunAmerica Inc.
1 SunAmerica Center
Century City
Los Angeles, California 90067-6022
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
SunAmerica Capital Trust [_] (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Section 3801
et seq.), proposes to issue and sell [___] shares of its [_____]%
[________________] Preferred Securities (the "Firm Securities") [and not more
than [___] shares of its [_____]% [________________] Preferred Securities (the
"Additional Securities"), if any, to the extent we shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such Additional
Securities on the terms described below.] The Firm Securities [and the
Additional Securities] are hereinafter collectively referred to herein as the
"Preferred Securities".
It is understood that substantially contemporaneously with the
offering and sale of the Firm Securities to the Underwriters contemplated
hereby, (i) the Trust, its trustees (the "Trustees") and the Company shall
take all necessary action to adopt an Amended and Restated Declaration of
Trust in substantially the form of the Form of Amended and Restated
Declaration of Trust attached as Exhibit 4.10 to the Registration Statement
referred to below, (as so amended and restated, the "Declaration") pursuant to
which the Trust shall (x) issue and sell the Preferred Securities to the
Underwriters pursuant hereto and (y) issue [_] shares of its [___]% [____]
Common Securities [(and up to an additional [_] shares of such securities in
connection with the issuance and sale of the Additional Securities)] (the
"Common Securities" and, together with the Preferred Securities, the "Trust
Securities") to the Company, in each case with such rights and obligations as
shall be set forth in such Declaration, (ii) the Company and The First
National Bank of Chicago, as Trustee, acting pursuant to an Indenture dated as
of March 15, 1995, shall enter into a Supplemental Indenture in substantially
the form of the Form of Supplemental Indenture attached as Exhibit 4.12 to the
Registration Statement referred to below (the "Supplemental Indenture", and
the Indenture, as so supplemented, the "Indenture") providing for the issuance
of $[____________] in aggregate principal amount of the Company's Junior
Subordinated Debentures, Series [_], due 20[__] (the "Debentures"), (iii) the
Company shall deposit such Debentures in the Trust in conjunction with the
consummation of the sale of the Preferred Securities to the Underwriters
contemplated hereby and (iv) the Company and The Bank of New York, as
Guarantee Trustee, shall enter into a Guarantee Agreement in substantially the
form of the Form of the Preferred Securities Guarantee attached as Exhibit
4.14 of the Registration Statement referred to below (the "Guarantee") for the
benefit of holders from time to time of the Preferred Securities.
Subject to the terms and conditions set forth or incorporated
by reference herein, the Trust hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the respective number of Firm
Securities set forth below opposite their names at a purchase price per share
of $______:
Number of shares of
Name Firm Securities
---- -------------------
[Insert syndicate list]
Total . . . . . .
===========
[On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Trust agrees
to sell to the Underwriters the Additional Securities, and the Underwriters
shall have a one-time right to purchase, severally and not jointly, all or a
part of the Additional Securities at the purchase price per share listed
above. Additional Securities may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Securities. If any Additional Securities are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Securities (subject to such adjustments to eliminate fractional
securities as you may determine) that bears the same proportion to the total
number of Additional Securities to be purchased as the amount of Firm
Securities set forth above opposite the name of such Underwriter bears to the
total amount of Firm Securities.]
The Underwriters will pay for the Firm Securities upon delivery
thereof at [office] at ______ a.m. (New York time) on ___________, 199_, or at
such other time, not later than 5:00 p.m. (New York time) on __________, 199_,
as shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the "Closing Date".
[The Underwriters will pay for any Additional Securities upon
delivery thereof at [office] at [_____]a.m. (New York time), on such date
(which may be the same as the Closing Date but shall in no event be earlier
than the Closing Date nor later than the date ten business days after the
giving of the notice hereinafter referred to) as shall be designated in a
written notice from the Manager to the Company of our determination, on behalf
of the Underwriters, to purchase an aggregate number, specified in said notice,
of Additional Securities, as shall be designated in writing by us. Such
notice of determination to exercise the option to purchase Additional
Securities and of the designated Option Closing Date (defined below) may be
given by the Manager at any time within 30 days after the date of this
Agreement. The designated time and date of such payment and delivery are
hereinafter referred to as the "Option Closing Date".]
The Preferred Securities shall have the terms set forth in the
Prospectus dated _________ __, 199_, and the Prospectus Supplement dated
________ __, 199_, including the following:
Terms of Preferred Securities
Aggregate Number of
Firm Securities:
[Aggregate Number of
Additional Securities:]
Purchase Price:
Closing Date:
[Option Closing Date:]
Form:
Distribution, Liquidation [Refer to Exhibit 4.10
and Redemption Provisions: of the Registration
Statement]
Guarantee Provisions: [Refer to Exhibit 4.14 of the
Registration Statement]
[Lock-Up Securities:]
[Lock-Up Period:]
[Other Terms:]
[[Each of the Trust and] The Company hereby agrees that,
without our prior written consent, it will not, directly or indirectly, offer,
sell, contract to sell or grant any option to purchase or otherwise dispose of
any shares of the securities listed above as "Lock-Up Securities", or any
securities convertible into or exchangeable for Lock-Up Securities, for the
period(s) listed above as the "Lock-Up Period" in respect of such Lock-Up
Securities; provided, however, that such restriction shall not affect the
ability of the Trust, the Company or its subsidiaries to take any such action
(i) as a consequence of obligations under securities outstanding prior to the
date hereof, (ii) in connection with any employee benefit or incentive plans
of the Company or its subsidiaries or (iii) in connection with the offering of
the Preferred Securities contemplated hereby.]
All provisions contained in the document entitled SunAmerica
Capital Trusts and SunAmerica Inc. Underwriting Agreement Standard Provisions
(Preferred Securities) dated September __, 1995, a copy of which is attached
hereto, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein, except that (i) if any term defined in such
document is otherwise defined herein, the definition set forth herein shall
control, (ii) all references in such document to, and all provisions in such
document relating to, a type of agreement that has not been entered into in
connection with the transactions contemplated hereby shall not be deemed to
be a part of this Agreement and (iii) all references to "Additional
Securities" and "Option Closing Date" and all provisions related to the grant
of an over-allotment option to Underwriters hereunder shall not be deemed to
be a part of this Agreement in the event that an over-allotment option is not
so granted hereby.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
____________________________
____________________________
____________________________
Acting severally on behalf of themselves and the
several Underwriters named herein
By: _______________________
_______________________
By: _______________________
Name:
Title:
Accepted:
SUNAMERICA CAPITAL TRUST [_]
a Delaware statutory business trust
By: SUNAMERICA, INC.,
Sponsor
By: __________________________
Name:
Title:
SUNAMERICA INC.
By: ________________________
Name:
Title:
SUNAMERICA CAPITAL TRUSTS AND
SUNAMERICA INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(PREFERRED SECURITIES)
September __, 1995
From time to time SunAmerica Inc., a Maryland corporation
(the "Company") and one or more statutory business trusts entitled
"SunAmerica Capital Trust [__]" designated therein (the "Trust"), may enter
into one or more underwriting agreements that provide for the sale of
designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in
any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Trust and the Company have filed with the Securities and
Exchange Commission (the "Commission") a registration statement, including
a prospectus, relating to the Preferred Securities, the Debentures and the
Guarantee and have filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating
to the Preferred Securities, the Debentures and the Guarantee pursuant to
Rule 424 under the Securities Act of 1933, as amended (the "Securities
Act"). The term "Registration Statement" means such registration
statement, including the exhibits thereto, as amended to the date of this
Agreement. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating
to the Preferred Securities, the Debentures and the Guarantee, together
with the Basic Prospectus. As used herein, the terms "Basic Prospectus,"
"Prospectus" and "preliminary prospectus" shall include in each case the
documents, if any, incorporated by reference therein. The terms
"supplement" and "amendment" or "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Trust or the
Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act").
1. Representations and Warranties. The Company represents
and warrants to each of the Underwriters that:
(a) The Registration Statement (including the most recent
post-effective amendment thereto, if any) has been declared effective by
the Commission; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose
are pending before or threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective,
did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Registration Statement,
since the later of the date it became effective and the date of the most
recent post-effective amendment, if any, will not fail to reflect any facts
or events which individually or in the aggregate represent a fundamental
change in the information set forth in the Registration Statement as of
such date, (iii) the Registration Statement and the Prospectus comply, and,
as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iv) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this Section 1(b) do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Trust or the
Company in writing by such Underwriter through the Manager expressly for
use therein.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Maryland, with corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as described
in the Registration Statement and Prospectus; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings or business affairs of the Company and its subsidiaries, considered
as one enterprise.
(d) Each of Sun Life Insurance Company of America, First
SunAmerica Life Insurance Company, Anchor National Life Insurance Company,
SunAmerica Asset Management Corp., Resources Trust Company, Royal Alliance
Associates, Inc. and SunAmerica Securities, Inc. (together, the
"Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own, lease and operate
its properties and to conduct its business as presently conducted and as
described in the Registration Statement and Prospectus, and is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries, considered as one enterprise; and
all of the issued and outstanding capital stock of each Subsidiary has been
duly authorized and validly issued, is fully paid and nonassessable and is
owned (except for directors qualifying shares) directly or through
subsidiaries, by the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(e) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act, is and will be
treated as a "grantor trust" for Federal income tax purposes under existing
law, has the business trust power and authority to conduct its business as
presently conducted and as described in the Registration Statement and
Prospectus, and is not required to be authorized to do business in any other
jurisdiction.
(f) The Trust and the Company have taken all business trust
and corporate action necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement has been validly executed and
delivered by each of the Trust and the Company.
(g) No consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Trust or the Company of its obligations under this
Agreement, or the issuance and sale of the Preferred Securities, except such
as may be required by the securities or Blue Sky laws or insurance securities
laws of the various states in connection with the offer and sale of the
Preferred Securities.
(h) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Registration Statement and Prospectus
(except for subsequent issuances, if any, pursuant to reservations, stock
option agreements, employee benefit plans or the exercise of convertible
securities which may be referred to in the Registration Statement and
Prospectus); all of the issued and outstanding shares of capital stock have
been duly authorized and validly issued and are fully paid, nonassessable and
not subject to any preemptive or similar rights.
(i) As of the Closing Date, the Trust Securities will have
been duly authorized by the Declaration and (x) when the Preferred
Securities are issued in accordance with the terms of this Agreement and
delivered to and paid for by the Underwriters and (y) the Common Securities
are issued against payment therefor as provided in the Declaration, such
Trust Securities will be duly and validly issued and (subject to the terms
of the Declaration) will be fully paid and nonassessable undivided
beneficial interests in the assets of the Trust, not subject to any
preemptive or similar rights, and will conform to all statements relating
thereto contained in the Registration Statement and Prospectus. Holders of
Trust Securities will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
(j) As of the Closing Date, the Declaration will have been
duly authorized, executed and delivered by the Company and the other
trustees of the Trust (the "Trustees") and will be a valid and binding
obligation of the Company and the Trustees, enforceable against the Company
and the Trustees in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights and
remedies generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity).
(k) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and, as of the Closing Date, assuming
due authorization, execution and delivery by the Trustee thereunder, of the
Indenture, the Supplemental Indenture and the Debentures, the Indenture (as
so supplemented) and the Debentures will be valid and binding agreements of
the Company, enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability; and the Indenture and the Debentures
will conform in all respects to statements relating thereto contained in
the Registration Statement and the Prospectus.
(l) None of the Trust, the Company nor any of the
Subsidiaries is in violation of its respective Declaration, charter or
bylaws, as applicable, or in default in the performance of any material
obligation, agreement, covenant or condition contained in any material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Trust, the Company or any of the Subsidiaries is a
party or by which any of them may be bound, or to which any of the property
or assets of the Trust, the Company or of any of the Subsidiaries is
subject, or in violation of any applicable law, administrative regulation
or administrative or court order or decree, which violation or default
would, singly or in the aggregate, have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of
the Trust, the Company and its subsidiaries, considered as one enterprise;
and the execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated herein and in the Prospectus
will not conflict with or constitute a breach of, or a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Trust, the Company or any of the
Subsidiaries pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Trust, the Company
or any of the Subsidiaries is a party or by which any of them may be bound,
or to which any of the property or assets of the Trust, the Company or any
of the Subsidiaries is subject, except for a conflict, breach, default,
lien, charge or encumbrance which would not have a material adverse effect
on the condition, financial or otherwise, or the earnings or business
affairs of the Trust, the Company and its subsidiaries considered as one
enterprise, nor will such action result in any violation of the provisions
of the respective Declaration, charter or bylaws of the Trust, the Company
or any of the Subsidiaries, as applicable, or any applicable law,
administrative regulation or administrative or court decree.
(m) There is no action, suit, or proceeding before or by
any court or governmental agency or body, domestic or foreign, pending
against or, to the knowledge of the Company, threatened against or
affecting any of the Trust, the Company or any subsidiaries of the Company,
or any of their respective assets or properties, which is required to be
disclosed in the Registration Statement or the Prospectus (other than as
disclosed therein), or which is reasonably likely to result in any material
adverse change in the condition, financial or otherwise, or in the earnings
or business affairs of the Trust or the Company and its subsidiaries,
considered as one enterprise, or which would be reasonably likely to
materially and adversely affect a material portion of the properties or
assets thereof or which is reasonably likely to materially and adversely
affect the consummation of this Agreement; all pending legal or
governmental proceedings to which the Trust or the Company or any of its
subsidiaries is a party or of which any of their respective property or
assets is the subject which are not described in the Registration Statement
or the Prospectus, including ordinary routine litigation incidental to the
business of the Trust or the Company or any of its subsidiaries, are,
considered in the aggregate, not material; and there are no contracts or
documents of the Trust or the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement or
Prospectus by the Securities Act, the Exchange Act or the rules and
regulations promulgated thereunder, which have not been filed.
(n) Price Waterhouse LLP, the accountants who certified the
financial statements and supporting schedules of the Company included or
incorporated by reference in the Registration Statement and Prospectus, are
independent public accountants with respect to the Trust and the Company and
the subsidiaries of the Company as required by the Securities Act and the
rules and regulations promulgated thereunder.
(o) The financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus present
fairly the financial position of the Company and the consolidated subsidiaries
of the Company as of the dates indicated and the results of their operations
for the periods specified; except as otherwise stated in the Registration
Statement and Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis; the ratios of earnings to combined fixed charges (including
preferred stock dividends) included in the Registration Statement or
Prospectus have been calculated in compliance with Item 503(d) of Regulation
S-K of the Commission; and the supporting schedules included or incorporated
by reference in the Registration Statement or Prospectus present fairly the
information required to be included therein.
(p) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as otherwise
stated or contemplated therein, (i) there has been no material adverse change
and no development involving a prospective material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of
the Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) there have been no
transactions entered into by the Company or any of the Subsidiaries which are
material to the Company and its subsidiaries, considered as one enterprise,
other than those entered into in the ordinary course of business and (iii)
except for regular quarterly dividends, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(q) The Trust, the Company and the Subsidiaries possess such
certificates, authorizations or permits issued by the appropriate state or
federal regulatory agencies or bodies as are necessary to conduct the business
as now conducted by them and as described in the Registration Statement or
Prospectus, except where the failure to so possess such certificates,
authorizations or permits would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of the
Trust or the Company and its subsidiaries, considered as one enterprise; and
none of the Trust, the Company nor any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, is
reasonably likely to have a material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of the Trust or
the Company and its subsidiaries, considered as one enterprise.
(r) Neither the Trust nor the Company is an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(s) None of the Trust, the Company or any of their affiliates
is presently doing business with the government of Cuba or with any person or
affiliate located in Cuba.
2. Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Preferred Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Preferred Securities are set forth in the Prospectus.
3. Purchase and Delivery. Payment for the Preferred
Securities to be purchased by the Underwriters on the Closing Date or the
Option Closing Date, as the case may be, shall be made by certified or
official bank check or checks payable to the order of the Company in New York
Clearing House or similar next-day funds at the time and place set forth in
the Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Preferred Securities in
certificated form, registered in such names and in such denominations as the
Manager shall request in writing not less than one full business day prior to
the date of delivery, with any transfer taxes payable in connection with the
transfer of the Preferred Securities to the Underwriters duly paid.
4. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or
in the earnings, business or operations, of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(c) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (b) above
and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Trust and the Company have complied with
all of the agreements and satisfied all of the obligations on their
part to be performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date
opinions of Piper & Marbury, Maryland counsel for the Company, Susan
L. Harris, Esq., Vice President and General Counsel--Corporate
Affairs for the Company, Davis Polk & Wardwell, special counsel for
the Company, and Richards, Layton & Finger, Delaware counsel for the
Trust, each dated the Closing Date, to the effect set forth in
Exhibits A, B, C and D, respectively. In giving such opinion, (i)
Ms. Harris may rely, as to matters governed by laws other than the
laws of the State of California and the federal law of the United
States of America, on an opinion or opinions of Davis Polk &
Wardwell, Piper & Marbury and Richards, Layton & Finger, (ii) Davis
Polk & Wardwell may rely, as to matters governed by laws other than
the laws of the State of New York and the federal law of the United
States of America, on an opinion or opinions of Piper & Marbury and
Richards, Layton & Finger and (iii) Richards, Layton & Finger may
rely, as to matters governed by laws other than the State of
Delaware, or an opinion or opinions of Piper & Marbury and Davis Polk
& Wardwell, in each case so long as such opinion shall be dated the
Closing Date and in form and substance satisfactory to the Manager,
and shall expressly permit the Underwriters to rely thereon as if
such opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an
opinion of special counsel for the Underwriters (the selection of
whom shall be approved by the Company), dated the Closing Date, to
the effect set forth in paragraphs (i) and (ii) in Exhibit A,
paragraphs (i) through (iv) and (vi) through (viii) in Exhibit C and
paragraphs (i) through (v) in Exhibit D. In giving such opinion,
such counsel may rely, as to matters governed by laws other than the
federal law of the United States of America, on an opinion or opinions
of local counsel satisfactory to the Manager, so long as each such
opinion shall be dated the Closing Date and in form and substance
satisfactory to the Manager, and shall expressly permit the
Underwriters to rely thereon as if such opinion were addressed to
Underwriters.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Manager, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
(g) The Manager shall have received a certificate from The
Bank of New York and The Bank of New York (Delaware), as Trustees,
dated the Closing Date and signed by appropriate officers of such
Trustees, containing statements and information substantially in the
form of Appendix E hereto.
(h) The Preferred Securities of the Trust shall have been
approved for listing on the New York Stock Exchange upon notice of
issuance.
(i) On the Closing Date, (i) the Preferred Securities shall
have a rating of at least "Baa2" from Moody's Investors Service, Inc.
and at least "A-" from Standard & Poor's Corporation as evidenced in
a letter from such rating agencies or by other evidence satisfactory
to the Manager and (ii) no securities of the Company or of any other
SunAmerica Capital Trust that is (x) organized in substantially the
form of, and for substantially the same purpose as, the Trust and (y)
whose common equity capital is wholly-owned by the Company or its
subsidiaries (each a "SunAmerica Trust") shall have been downgraded
or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization.
The several obligations of the Underwriters to purchase
Additional Securities hereunder are subject to delivery to the Manager on the
Option Closing Date of such opinions, certificates and documents contemplated
by this Section 4 as such Manager shall reasonably request relating to the
issuance of the Additional Securities.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement
as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Preferred Securities,
the Debentures or the Guarantee, to furnish to the Manager a copy of
each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager reasonably
objects.
(c) If, during such period after the first date of the
public offering of the Preferred Securities as the Prospectus is
required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as
a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters,
and to the dealers (whose names and addresses the Manager will
furnish to the Company) to which Preferred Securities may have
been sold by the Manager on behalf of the Underwriters and to any
other dealer upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus, as so amended or supplemented, will comply
with law.
(d) To endeavor to qualify the Preferred Securities for
offer and sale under the securities or Blue Sky laws or insurance
securities laws of such jurisdictions as the Manager shall
reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification
and in connection with any review of the offering of the Preferred
Securities by the National Association of Securities Dealers, Inc.
(e) To make generally available to the security holders of
the Trust and the Company and to the Manager as soon as
practicable an earning statement covering a twelve month period
beginning on the first day of the first full fiscal quarter after
the date of this Agreement, which earning statement shall satisfy
the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder.
(f) During the period mentioned in paragraph (c) above, to
advise the Underwriters promptly of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceeding for
that purpose.
6. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages and liabilities, joint or several (including,
without limitation, any legal or other expenses reasonably incurred by any
Underwriter or any such controlling person in connection with defending or
investigating any such action or claim), caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Trust and the Company shall
have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with
information furnished to the Trust and the Company by any Underwriter in
writing through the Manager expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting such losses, claims, damages or liabilities purchased
Offered Securities, or any person controlling such Underwriter, if a copy
of the Prospectus (as then amended or supplemented, if the Trust and the
Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to such purchase,
and if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities. This
indemnity will be in addition to any liability which the Company may
otherwise have.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the (i) the Trust, its Trustees, its officers
who sign the Registration Statement and each person, if any, who controls
the Trust within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and (ii) the Company, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, in each such case to the
same extent as the foregoing indemnity from the Company to such
Underwriter, but only to the extent that any untrue statement or omission
or alleged untrue statement or omission was made in reliance upon and in
conformity with information furnished to the Trust or the Company by any
Underwriter in writing through the Manager expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto. This indemnity will be in addition to
any liability which the Underwriters may otherwise have.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager,
in the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. 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.
If the indemnification provided for in the first or second
paragraph in this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Trust and the Company on the one hand and
the Underwriters on the other hand from the offering of the Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Trust and the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by
the Trust and the Company on the one hand and the Underwriters on the other
hand in connection with the offering of the Preferred Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Preferred Securities (before deducting expenses) received by
the Trust and the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Trust and the
Company on the one hand and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Trust or the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant to
this Section 6 are several in proportion to the respective principal amounts
of Preferred Securities purchased by each of such Underwriters and not joint.
The Trust, the Company and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this Section 6
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 the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 6, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Preferred Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 6 and the representations and warranties of the Trust and the Company
contained herein shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Trust, its Trustees or any person
controlling the Trust, the Company, its directors or officers or any person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
7. Termination. This Agreement shall be subject to
termination, by notice given by the Manager to the Trust and the Company, if
(a) after the execution and delivery of the Underwriting Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, the New York Stock Exchange
or the American Stock Exchange, (ii) trading of any securities of the Company
or of any SunAmerica Trust shall have been suspended on any exchange or in any
over-the-counter market, (iii) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity
or crisis that, in the judgment of the Manager, is material and adverse, or
(iv) a general moratorium on commercial banking activities in New York shall
have been declared by either federal or New York State authorities, and (b) in
the case of any of the events specified in clauses (a)(i) through (iii), such
event, singly or together with any other such event, makes it, in the judgment
of the Manager, impracticable to market the Preferred Securities on the terms
and in the manner contemplated in the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date or the
Option Closing Date, as the case may be, any one or more of the Underwriters
shall fail or refuse to purchase Preferred Securities that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of
Preferred Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Preferred Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number
of Preferred Securities set forth opposite their respective names above bears
to the aggregate number of Preferred Securities set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as the
Manager may specify, to purchase the Preferred Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Preferred
Securities that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 8 by an number in excess of
one-ninth of such number of Preferred Securities without the written consent
of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Preferred Securities to be purchased on such
date and the aggregate number of Preferred Securities with respect to which
such default occurs is more than one-tenth of the aggregate number of
Preferred Securities to be purchased on such date, and arrangements
satisfactory to the Manager and the Company for the purchase of such Preferred
Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either the Manager or the
Company shall have the right to postpone the Closing Date but in no event for
longer then seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Preferred Securities to be
purchased on such date and the aggregate number of Preferred Securities with
respect to which such default occurs is more than one-tenth of the aggregate
number of Preferred Securities to be purchased on such date, the non-defaulting
Underwriters shall have the option to (i) terminate their obligation hereunder
to purchase Preferred Securities to be purchased on such date or (ii) purchase
not less than the number of Preferred Securities that such non-defaulting
Underwriters would have been obligated to purchase on such date in the absence
of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Trust or the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Trust or the Company shall be unable to
perform its obligations under this Agreement, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering of the
Preferred Securities. Nothing in the foregoing sentence shall limit the
Company's obligations to pay expenses as provided in Section 5.
9. Miscellaneous. The Underwriting Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
10. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
11. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same agreement.
Exhibit A
Opinion of Maryland Counsel for the Company
The opinion of Piper & Marbury, Maryland counsel for the
Company, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement, shall be limited to the laws of the State of Maryland and shall be
to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws under
the State of Maryland; and the Company has the corporate power
under the laws of the State of Maryland and under its charter to
own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus.
(ii) the Underwriting Agreement, the Declaration, the
Indenture, the Debentures and the Guarantee have been duly
authorized, executed and delivered by the Company; and
(iii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the
Underwriting Agreement, the Declaration, the Indenture, the
Debentures and the Guarantee will not contravene any provision of
any material applicable law of the State of Maryland or the
articles of incorporation or by-laws of the Company (excluding the
securities or Blue Sky laws of the State of Maryland, as to which
such counsel need not express any opinion).
Exhibit B
Opinion of Counsel for the Company
The opinion of Susan L. Harris, Vice President and General
Counsel--Corporate Affairs of the Company, to be delivered pursuant to Section
4(d) of the Underwriting Agreement shall be to the effect that:
(i) to the best of such counsel's knowledge and information,
the Company is duly qualified as a foreign corporation to transact
business and in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify or
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, on the earnings or business
affairs of the Company and its subsidiaries, taken as a whole;
(ii) each Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation and has the corporate
power and authority to own, lease and operate its properties and
to conduct its business as presently conducted and as described in
the Registration Statement and Prospectus; nothing has come to the
attention of such counsel to lead such counsel to believe that any
of Sun Life Insurance Company of America, Anchor National Life
Insurance Company or SunAmerica Asset Management Corp. is not duly
qualified as a foreign corporation to transact business or is not
in good standing in each jurisdiction in which such qualification
is required, except where the failure to so qualify or be in good
standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries considered as one
enterprise; to the best of such counsel's knowledge and
information, all of the issued and outstanding capital stock of
each Subsidiary is owned (except for directors qualifying shares),
directly or through subsidiaries, by the Company, free and clear
of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity;
(iii) to the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as exhibits
thereto other than those described or referred to therein or filed as
exhibits thereto, the descriptions thereof or references thereto are
correct and, to the best of such counsel's knowledge and information,
no default exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or
other instrument so described, referred to or filed, which default
could have a material adverse effect on the Trust or the Company and
its subsidiaries considered as one enterprise;
(iv) to the best of such counsel's knowledge and
information, the execution and delivery of the Underwriting
Agreement, the Declaration, the Indenture, the Debentures and the
Guarantee and the consummation of the transactions contemplated
herein and in the Registration Statement and Prospectus will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Trust, the Company
or any of the Subsidiaries pursuant to, any material contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Trust, the Company or any of the
Subsidiaries is a party or by which any of them may be bound, or
to which any of the property or assets of the Trust, the Company
or any of the Subsidiaries is subject, except for a conflict,
breach, default, lien, charge or encumbrance which would not have
a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Trust or the
Company and its subsidiaries considered as one enterprise nor will
such action result in any violation of the provisions of the
respective Declaration, charter or by-laws of the Trust, the
Company and the Subsidiaries, as applicable, or any material
applicable law, administrative regulation or administrative or
court decree;
(v) to the best of such counsel's knowledge and information,
no consent, approval, authorization or order of or qualification
with any governmental body or agency is required for the
performance by the Trust or the Company of its obligations under
the Underwriting Agreement, or the issuance and sale of the
Preferred Securities except such as may be required by the
securities or Blue Sky laws or insurance securities laws of the
various states in connection with the offer and sale of the
Preferred Securities;
(vi) to the best of such counsel's knowledge and information,
there are no legal or governmental proceedings pending or threatened
or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus that are not described as required;
(vii) such counsel (1) is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus (except for financial statements,
supporting schedules and other financial data included or
incorporated by reference therein, as to which such counsel need not
express any opinion) appeared on its face to be appropriately
responsive in all material respects to the requirements of the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (2) believes that (except for financial
statements, supporting schedules and other financial data included
or incorporated by reference therein, as to which such counsel need
not express any belief, and except for the part of the Registration
Statement that constitutes the Form T-1 heretofore referred to) each
part of the Registration Statement, when such part became effective
did not, and as of the date such opinion is delivered, does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (3) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein, as to which such counsel need not
express any opinion, and except for the part of the Registration
Statement that constitutes the Form T-1 heretofore referred to)
appear on their face to be appropriately responsively in all material
respects to the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder and (4) believes
that (except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein, as to
which such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(viii) the Registration Statement is effective under the
Securities Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement is in effect under the Securities Act, and no
proceedings for such purpose are pending before or threatened by
the Commission.
With respect to the foregoing paragraph (vii), such counsel may
state that her opinion and belief are based upon her participation in the
preparation of the Registration Statement and Prospectus and any amendments,
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified.
Exhibit C
Opinion of Special Counsel for the Company
The opinion of Davis Polk & Wardwell, special counsel for the
Company, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement shall be to the effect that:
(i) the statements in the Prospectus under the captions
"Description of the Preferred Securities," "Description of the Junior
Subordinated Debentures" and "Description of the Preferred Securities
Guarantee", insofar as such statements constitute summaries of the
legal matters or documents referred to therein, have been reviewed by
such counsel and fairly summarize the matters referred to therein;
(ii) the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and, assuming due authorization,
execution and delivery by the Company and the Trustee thereunder of
the Indenture, the Supplemental Indenture and the Debentures, each of
the Supplemental Indenture, Indenture (as so supplemented) and the
Debentures will be a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (b) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(iii) the Preferred Securities, the Debentures and the
Guarantee conform in all material respects to the descriptions
thereof contained in the Prospectus and the Registration Statement;
(iv) neither the Trust nor the Company is an "investment
company" or a company "controlled by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended;
(v) to the best of such Counsel's knowledge and information,
no consent, approval, authorization or order of or qualification with
any governmental body or agency is required for the performance by
the Trust or the Company of its obligations under the Underwriting
Agreement, or the issuance and sale of the Preferred Securities,
except such as may be required by the securities or Blue Sky laws or
insurance securities laws of the various states in connection with
the offer and sale of the Preferred Securities;
(vi) the statements in the Prospectus under the caption "Plan
of Distribution," insofar as such statements constitute summaries of
the legal matters or documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents or proceedings and fairly summarize the matters
referred to therein;
(vii) such counsel (1) believes that (except for financial
statements, supporting schedules and other financial data included
or incorporated by reference therein and any of the documents
incorporated by reference therein, as to which such counsel need
not express any belief, and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore
referred to) each part of the Registration Statement, when such
part became effective did not, and as of the date such opinion is
delivered, does not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (2) is of the opinion that the Registration Statement
and Prospectus (except for financial statements, supporting
schedules and other financial data included or incorporated by
reference therein and any of the documents incorporated or deemed
to be incorporated by reference therein, as to which such counsel
need not express any opinion, and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore
referred to) appear on their face to be appropriately responsive
in all material respects to the requirements of the Securities Act
and the applicable rules and regulations of the Commission
thereunder and (3) believes that (except for financial statements,
supporting schedules and other financial data included or
incorporated by reference therein and any of the documents
incorporated or deemed to be incorporated by reference therein, as
to which such counsel need not express any belief) the Prospectus
as of the date such opinion is delivered does not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading;
and
(viii) the Registration Statement is effective under the
Securities Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement is in effect under the Securities Act, and no
proceedings for such purpose are pending before or threatened by
the Commission.
With respect to the foregoing paragraph (vii), such counsel
may state that their opinion and belief are based upon their participation
in the preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the documents incorporated by
reference) and upon review and discussion of the contents thereof
(including documents incorporated by reference) but are without independent
check or verification, except as specified.
Exhibit D
Opinion of Delaware Counsel for the Trust
The opinion of Richards, Layton & Finger, special counsel for
the Trust, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement shall be to the effect that:
(i) the Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act and under
the Declaration and the Delaware Act has the business trust power and
authority to conduct its business as described in the Registration
Statement and Prospectus;
(ii) assuming due authorization, execution and delivery of the
Declaration by the Company and the Trustees, the Declaration is a
legal, valid and binding agreement of the Company and the Trustees,
enforceable against the Company and the Trustees in accordance with
its terms, except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or other similar laws relating to
or affecting the rights and remedies of creditors generally and (b)
principles of equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a proceeding
in equity or at law);
(iii) under the Declaration and the Delaware Act, the
execution and delivery of the Underwriting Agreement by the Trust,
and the performance by the Trust of its obligations thereunder,
have been duly authorized by all business trust action on the part
of the Trust;
(iv) the Trust Securities have been duly authorized by the
Declaration and (x) when the Preferred Securities are issued in
accordance with the terms of the Underwriting Agreement and
delivered to and paid for by the Underwriters and (y) the Common
Securities are issued against payment therefor as provided in the
Declaration, such Trust Securities will be duly and validly issued
and, subject to the qualifications set forth in such opinion, will
be fully paid and nonassessable undivided beneficial interests in
the assets of the Trust; the holders of Trust Securities, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware;
In rendering such opinion, such counsel may note that
holders of Trust Securities may be obligated, pursuant to the
Declaration, to (i) provide indemnity and security in connection
with and pay taxes or other governmental charges arising from
transfers of certificates for Trust Securities and the issuance of
replacement certificates for Trust Securities, (ii) provide
security and indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and
remedies under the Declaration and (iii) undertake as a party
litigant to pay costs in any suit for the enforcement of any right
or remedy under the Declaration or against the Property Trustee,
to the extent provided in the Declaration. In rendering such
opinion such counsel may also note that the Company, in its
capacity as Sponsor and not in its capacity as a Holder, has
undertaken certain payment obligations as set forth in the
Declaration; and
(v) under the Declaration and the Delaware Act, the issuance
of the Trust Securities is not subject to preemptive rights.
Exhibit E
TRUSTEES' CERTIFICATE
The Bank of New York, a New York banking corporation
("BONY-NY"), and The Bank of New York (Delaware), a Delaware banking
corporation ("BONY-DEL," and together with BONY-NY, the "Trustees"), each
hereby certifies that:
1. The [Declaration of Trust] [Amended and Restated
Declaration of Trust] of SunAmerica Capital Trust [_] (the "Trust"), dated as
of ________ __, 199[_] (the "Declaration of Trust"), by and among SunAmerica
Inc., a Maryland corporation, as sponsor (the "Sponsor"), the Trustees and the
other parties thereto has been duly executed and delivered in the name and on
behalf of each of BONY-NY and BONY-DEL by ______________, its ____________,
and ______________, its __________________, respectively.
2. Each person who, on behalf of each of the Trustees,
executed and delivered the [Declaration of Trust] [Amended and Restated
Declaration of Trust] was at the date thereof and is now duly elected,
appointed or authorized, qualified and acting as an officer or authorized
signatory of such Trustee and duly authorized to perform such act at the time
of such act and the signatures of such persons appearing on such documents are
their genuine signatures.
3. Attached hereto are (a) an extract from the By-laws of each
of the undersigned, duly adopted by its Board of Directors, respecting the
signing authority of the persons mentioned above in paragraph 2 above, and (b)
a letter from a Senior Executive Vice President of each of the undersigned
authorizing, pursuant to such By-laws, such signing authority, which By-laws
and letter at the date hereof are in full force and effect.
4. To the knowledge of the Trustees, without any independent
investigation, the statutory business trust created pursuant to [the
Declaration of Trust] [that certain original declaration of trust, dated as of
_________ __, 199[_], by and among the Sponsor, the Trustees and the other
parties thereto] (a) has conducted no business other than in connection with
the Registration Statement on Form S-3 (No. 33-[______]) of the Sponsor, the
Trust and other trusts organized by the Sponsor (the "Registration Statement")
and (b) has no liabilities other than in connection with the Registration
Statement.
IN WITNESS WHEREOF, each of the Trustees has caused this
certificate to be executed in its corporate name by an officer thereunto duly
authorized and its corporate seal to be affixed hereto.
Dated: __________ __, 199[_]
The Bank of New York,
as trustee
By:________________________
Name:
Title:
[SEAL]
The Bank of New York
[Delaware], as trustee
By:________________________
Name:
Title:
[SEAL]
Exhibit 4.2
========================================================
SUNAMERICA INC.
AND
[_________________________________________]
Subordinated Indenture
Dated as of April __, 1993
__________
========================================================
CROSS REFERENCE SHEET(1)
____________
(1) This Cross Reference Sheet is not part of the Indenture.
__________
Between
Provisions of Trust Indenture Act of 1939 and Indenture to be
dated as of April __, 1993 between SUNAMERICA INC. and
[__________________________________], Trustee:
Section of the Act Section of Indenture
- ------------------ --------------------
310(a)(1) and (2)......................... 6.9
310(a)(3) and (4)......................... Inapplicable
310(b).................................... 6.8 and 6.10(a), (b) and (d)
310(c).................................... Inapplicable
311(a).................................... 6.13
311(b).................................... 6.13
311(c).................................... Inapplicable
312(a).................................... 4.1 and 4.2
312(b).................................... 4.2
312(c).................................... 4.2
313(a).................................... 4.4
313(b)(1)................................. Inapplicable
313(b)(2)................................. 4.4
313(c).................................... 4.4, 5.11, 6.10, 6.11, 8.2
and 122
313(d).................................... 4.4
314(a).................................... 3.5 and 4.3
314(b).................................... Inapplicable
314(c)(1) and (2)......................... 11.5
314(c)(3)................................. Inapplicable
314(d).................................... Inapplicable
314(e).................................... 11.5
314(f).................................... Inapplicable
315(a), (c) and (d)....................... 6.1
315(b).................................... 5.11
315(e).................................... 5.12
316(a)(1)................................. 5.9 and 5.10
316(a)(2)................................. Not required
316(a) (last sentence).................... 7.4
316(b).................................... 5.7
317(a).................................... 5.2
317(b).................................... 3.4(a) and (b)
318(a).................................... 11.7
TABLE OF CONTENTS
__________
Page
----
PARTIES..............................................................
RECITALS.............................................................
Authorization of Indenture..................................
Compliance with Legal Requirements..........................
Purpose of and Consideration for Indenture..................
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Certain Terms Defined...........................
Authenticating Agent............................
Authorized Newspaper............................
Board of Directors..............................
Board Resolution................................
Business Day....................................
Consolidated Total Assets.......................
Commission......................................
Corporate Trust Office..........................
Coupon..........................................
covenant defeasance.............................
Depositary......................................
Dollar..........................................
ECU.............................................
Event of Default................................
Foreign Currency................................
Holder, Holder of Securities,
Securityholder................................
Indebtedness....................................
Indenture.......................................
Insurance Subsidiary............................
Issuer..........................................
Issuer Order....................................
Judgment Currency...............................
Notice of Default...............................
Officers' Certificate...........................
Opinion of Counsel..............................
original issue date.............................
Original Issue Discount Security................
Outstanding.....................................
Periodic Offering...............................
Person..........................................
principal.......................................
record date.....................................
Registered Global Security......................
Registered Security.............................
Required Currency...............................
Responsible Officer.............................
Restricted Subsidiary...........................
Security or Securities..........................
Senior Indebtedness.............................
Subsidiary......................................
Trust Indenture Act of 1939.....................
Trustee.........................................
Unregistered Security...........................
U.S. Government Obligations.....................
Yield to Maturity...............................
ARTICLE TWO
SECURITIES
SECTION 2.1. Forms Generally.................................
SECTION 2.2. Form of Trustee's Certificate
of Authentication...............................
SECTION 2.3. Amount Unlimited; Issuable in Series............
SECTION 2.4. Authentication and Delivery of
Securities......................................
SECTION 2.5. Execution of Securities.........................
SECTION 2.6. Certificate of Authentication...................
SECTION 2.7. Denomination and Date of
Securities; Payments of Interest..............
SECTION 2.8. Registration, Transfer and Exchange.............
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities.........................
SECTION 2.10. Cancellation of Securities;
Destruction Thereof...........................
SECTION 2.11. Temporary Securities............................
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1. Payment of Principal and Interest...............
SECTION 3.2. Offices for Payments, etc.......................
SECTION 3.3. Appointment to Fill a Vacancy in
Office of Trustee.............................
SECTION 3.4. Paying Agents...................................
SECTION 3.5. Written Statement to Trustee....................
SECTION 3.6. Corporate Existence.............................
SECTION 3.7. Maintenance of Properties.......................
SECTION 3.8. Payment of Taxes and Other Claims...............
SECTION 3.9. Luxembourg Publications.........................
SECTION 3.10. SEC Reports.....................................
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1. Issuer to Furnish Trustee Information
as to Names and Addresses of
Securityholders...............................
SECTION 4.2. [Intentionally Omitted].........................
SECTION 4.3. Reports by the Issuer...........................
SECTION 4.4. Reports by the Trustee..........................
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1. Event of Default Defined; Acceleration
of Maturity; Waiver of Default................
SECTION 5.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt........................
SECTION 5.3. Application of Proceeds.........................
SECTION 5.4. Suits for Enforcement...........................
SECTION 5.5. Restoration of Rights on Abandonment
of Proceedings................................
SECTION 5.6. Limitations on Suits by
Securityholders...............................
SECTION 5.7. Unconditional Right of
Securityholders to Institute
Certain Suits.................................
SECTION 5.8. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default.......................................
SECTION 5.9. Control by Holders of Securities................
SECTION 5.10. Waiver of Past Defaults.........................
SECTION 5.11. Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances.................................
SECTION 5.12. Right of Court to Require Filing
of Undertaking to Pay Costs...................
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default.......................................
SECTION 6.2. Certain Rights of the Trustee...................
SECTION 6.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof...............
SECTION 6.4. Trustee and Agents May Hold
Securities or Coupons;
Collections, etc..............................
SECTION 6.5. Moneys Held by Trustee..........................
SECTION 6.6. Compensation and Indemnification
of Trustee and Its Prior Claim................
SECTION 6.7. Right of Trustee to Rely on
Officers' Certificate, etc....................
SECTION 6.8. Indentures Not Creating Potential
Conflicting Interests for the
Trustee.......................................
SECTION 6.9. Persons Eligible for Appointment
as Trustee....................................
SECTION 6.10. Resignation and Removal; Appointment
of Successor Trustee..........................
SECTION 6.11. Acceptance of Appointment by
Successor Trustee.............................
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee.............
SECTION 6.13. [Intentionally Omitted].........................
SECTION 6.14. Appointment of Authenticating Agent.............
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. Evidence of Action Taken by
Securityholders...............................
SECTION 7.2. Proof of Execution of Instruments and
of Holding of Securities......................
SECTION 7.3. Holders to be Treated as Owners.................
SECTION 7.4. Securities Owned by Issuer Deemed Not
Outstanding...................................
SECTION 7.5. Right of Revocation of Action Taken.............
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without
Consent of Securityholders....................
SECTION 8.2. Supplemental Indentures With Consent
of Securityholders............................
SECTION 8.3. Effect of Supplemental Indenture................
SECTION 8.4. Documents to Be Given to Trustee................
SECTION 8.5. Notation on Securities in Respect of
Supplemental Indentures.......................
SECTION 8.6. Subordination Unimpaired........................
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. Issuer May Consolidate, Etc., Only
on Certain Terms..............................
SECTION 9.2. Successor Corporation Substituted...............
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1. Satisfaction and Discharge of
Indenture.....................................
SECTION 10.2. Application by Trustee of Funds
Deposited for Payment of Securities...........
SECTION 10.3. Repayment of Moneys Held by Paying
Agent.........................................
SECTION 10.4. Return of Moneys Held By Trustee and
Paying Agent Unclaimed for Two
Years.........................................
SECTION 10.5. Indemnity For U.S. Government
Obligations...................................
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability..........................
SECTION 11.2. Provisions of Indenture for the Sole
Benefit of Parties and Holders of
Securities and Coupons........................
SECTION 11.3. Successors and Assigns of Issuer
Bound by Indenture............................
SECTION 11.4. Notices and Demands on Issuer,
Trustee and Holders of Securities
and Coupons...................................
SECTION 11.5. Officer's Certificates and Opinions
of Counsel; Statements to Be
Contained Therein.............................
SECTION 11.6. Payments Due on Saturdays, Sundays
and Holidays..................................
SECTION 11.7. Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939...................................
SECTION 11.8. New York Law to Govern..........................
SECTION 11.9. Counterparts....................................
SECTION 11.10. Effect of Headings..............................
SECTION 11.11. Securities in a Foreign Currency
or in ECU.....................................
SECTION 11.12. Judgment Currency...............................
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1. Applicability of Article........................
SECTION 12.2. Notice of Redemption; Partial
Redemptions...................................
SECTION 12.3. Payment of Securities Called for
Redemption....................................
SECTION 12.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption....................................
SECTION 12.5. Mandatory and Optional Sinking
Funds.........................................
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1. Agreement to Subordinate........................
SECTION 13.2. Rights of Senior Indebtedness in the
Event of Insolvency, etc......................
Issuer..............................
SECTION 13.3. Payment Over of Proceeds Received on
Securities....................................
SECTION 13.4. Payments to Holders.............................
SECTION 13.5. Holders of Securities Authorize
Trustee to Effectuate Subordination
of Securities.................................
SECTION 13.6. Notice to Trustee...............................
SECTION 13.7. Trustee May Hold Senior
Indebtedness..................................
SECTION 13.8. Applicability of Article 13 to
Agents........................................
TESTIMONIUM..........................................................
SIGNATURES...........................................................
THIS INDENTURE, dated as of April __, 1993 between SUNAMERICA
INC., a Maryland corporation (the "Issuer"), and
[________________________________], a national banking association, as trustee
(the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured debentures, notes or other evidences of indebtedness to
be issued in one or more series (the "Securities") up to such principal amount
or amounts as may from time to time be authorized in accordance with the terms
of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities and of the coupons, if any,
appertaining thereto as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context otherwise
clearly requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939 or the definitions of which in the Securities
Act of 1933 are referred to in the Trust Indenture Act of 1939, including
terms defined therein by reference to the Securities Act of 1933 (except as
herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined
shall have the meanings assigned to such terms in accordance with generally
accepted accounting principles, and the term "generally accepted accounting
principles" means such accounting principles as are generally accepted at
the time of any computation. The words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision. The terms
defined in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular.
"Authenticating Agent" shall have the meaning set forth in
Section 6.14.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition), in the case of the United Kingdom, will, if practicable,
be the Financial Times (London Edition) and, in the case of Luxembourg,
will, if practicable, be the Luxemburger Wort) published in an official
language of the country of publication customarily published at least once
a day for at least five days in each calendar week and of general
circulation in The City of New York, the United Kingdom or in Luxembourg,
as applicable. If it shall be impractical in the opinion of the Trustee to
make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
"Board of Directors" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act on its
behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have
been duly adopted or consented to by the Board of Directors and to be in full
force and effect, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that
in the city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on which
banking institutions are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
"Consolidated Total Assets" means, in respect of the Issuer as
of any date of determination, the amount of total assets shown on the
consolidated balance sheet of the Issuer and its consolidated subsidiaries
contained in the most recent annual or quarterly report filed with the
Commission, or if the Issuer is not then subject to the Securities Exchange
Act of 1934, the most recent annual or quarterly report to stockholders and,
in respect of any Subsidiary as of any date of determination, the amount of
total assets of such Subsidiary and its consolidated subsidiaries from which
such consolidated balance sheet of the Issuer and its consolidated
Subsidiaries was derived.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of which
this Indenture is dated, located in (_______________________),
(________________).
"Coupon" means any interest coupon appertaining to an
Unregistered Security.
"covenant defeasance" shall have the meaning set forth in
Section 10.1(C).
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at any
time there is more than one such Person, "Depositary" as used with respect to
the Securities of any such series shall mean the Depositary with respect to
the Registered Global Securities of that series.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as
such in Section 5.1.
"Foreign Currency" means a currency issued by the government
of a country other than the United States.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean (a) in the case of any Registered Security, the person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (b) in the
case of any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indebtedness" shall have the meaning set forth in Section 5.1.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"Insurance Subsidiary" means a Subsidiary registered in the
state of its domicile under the insurance laws of such state and qualified to
sell insurance products.
"Issuer" means (except as otherwise provided in Article Six)
SunAmerica Inc., a Maryland corporation and, subject to Article Nine, its
successors and assigns.
"Issuer Order" means a written statement, request or order of
the Issuer signed in its name by the chairman or vice chairman of the Board of
Directors, the president, any executive, senior or other vice president or the
treasurer of the Issuer.
"Judgment Currency" shall have the meaning set forth in Section
11.12.
"Officer's Certificate" means a certificate signed by the
chairman or vice chairman of the Board of Directors, the president or any
executive, senior or other vice president or the treasurer of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314
of the Trust Indenture Act of 1939 and include the statements provided for in
Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by the
General Counsel of the Issuer or by such other legal counsel who may be an
employee of or counsel to the Issuer and who shall be satisfactory to the
Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 11.5.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
"Outstanding" (except as otherwise provided in Section 7.4),
when used with reference to Securities, shall, subject to the provisions of
Section 7.4, mean, as of any particular time, all Securities authenticated and
delivered by the Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys or U.S. Government Obligations (as
provided for in Section 10.1) in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer for the Holders of such Securities (if the Issuer
shall act as its own paying agent), provided that if such Securities,
or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and
(c) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.9 (except with respect
to any such Security as to which proof satisfactory to the Trustee is
presented that such Security is held by a person in whose hands such
Security is a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration of the maturity thereof pursuant to Section
5.1.
"Periodic Offering" means an offering of Securities of a series
from time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon the issuance
of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include "and premium,
if any".
"record date" shall have the meaning set forth in Section 2.7.
"Registered Global Security", means a Security evidencing all
or a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.4, and bearing the legend prescribed
in Section 2.4.
"Registered Security" means any Security registered on the
Security register of the Issuer.
"Required Currency" shall have the meaning set forth in Section
11.12.
"Responsible Officer" when used with respect to the Trustee
means the chairman of the board of directors, any vice chairman of the board
of directors, the chairman of the trust committee, the chairman of the
executive committee, any vice chairman of the executive committee, the
president, any vice president, (whether or not designated by numbers or words
added before or after the title "vice president") the cashier, the secretary,
the treasurer, any trust officer, any assistant trust officer, any assistant
vice president, any assistant cashier, any assistant secretary, any assistant
treasurer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means (a) so long as they are
Subsidiaries of the Issuer, SunAmerica Corporation, Sun Life Insurance Company
of America and Anchor National Life Insurance Company; (b) any other future or
present Insurance Subsidiary the Consolidated Total Assets of which constitute
20 percent or more of the Consolidated Total Assets of the Issuer; and (c) any
Subsidiary which is a successor, by merger or otherwise, to substantially all
of the business or properties of any Insurance Subsidiary referred to or
described in the foregoing clauses (a) or (b).
"Security" or "Securities" (except as otherwise provided in
Section 7.4) has the meaning stated in the first recital of this Indenture,
or, as the case may be, Securities that have been authenticated and delivered
under this Indenture.
"Senior Indebtedness" means the principal of and premium, if
any, and interest on (a) all indebtedness of the Issuer, whether outstanding
on the date of this Indenture or thereafter created, (i) for money borrowed by
the Issuer, (ii) for money borrowed by, or obligations of, others and either
assumed or guaranteed, directly or indirectly, by the Issuer, (iii) in respect
of letters of credit and acceptances issued or made by banks, or (iv)
constituting purchase money indebtedness, or indebtedness secured by property
included in the property, plant and equipment accounts of the Issuer at the
time of the acquisition of such property by the Issuer, for the payment of
which the Issuer is directly liable, and (b) all deferrals, renewals,
extensions and refundings of, and amendments, modifications and supplements
to, any such indebtedness. As used in the preceding sentence the term
"purchase money indebtedness" means indebtedness evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or
other security interest) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, unless by its terms such indebtedness is
subordinate to other indebtedness of the Issuer. Notwithstanding anything to
the contrary in this Indenture or the Securities, Senior Indebtedness shall
not include (i) any indebtedness of the Issuer which, by its terms or the
terms of the instrument creating or evidencing it, is subordinate in right of
payment to or pari passu with the Securities or (ii) any indebtedness of the
Issuer to a Subsidiary.
"Subsidiary" means any corporation, partnership or other entity
of which at the time of determination the Issuer owns or controls directly or
indirectly more than 50% of the shares of voting stock.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning set forth
in Section 10.1(A).
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to rather than set forth in a Board
Resolution, an Officer's Certificate detailing such establishment) or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be determined
by the officers executing such Securities and Coupons, if any, as evidenced by
their execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the
within-mentioned Subordinated Indenture.
______________________,
as Trustee
By_____________________
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed
with respect to any series of Securities, then the Trustee's Certificate of
Authentication to be borne by the Securities of each such series shall be
substantially as follows:
"This is one of the Securities referred to in the
within-mentioned Subordinated Indenture.
_________________________,
as Authenticating Agent
By_____________________
Authorized Signatory"
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and each
such series shall rank equally and pari passu with the Securities of each
other series, but all Securities issued hereunder and any Coupons and the
payment of principal of and interest on any Securities and of any Coupons
shall be subordinate and junior in right of payment, to the extent and in the
manner set forth in Article Thirteen, to all Senior Indebtedness. There shall
be established in or pursuant to one or more Board Resolutions (and to the
extent established pursuant to rather than set forth in a Board Resolution, in
an Officer's Certificate detailing such establishment) or established in one
or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the Series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 2.8, 2.9,
2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited
to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such
interest shall accrue, on which such interest shall be payable and
(in the case of Registered Securities) on which a record shall be
taken for the determination of Holders to whom interest is payable
and/or the method by which such rate or rates or date or dates shall
be determined;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other than
as provided in Section 3.2);
(7) the right, if any, of the Issuer to redeem Securities, in
whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon
which Securities of the series may be so redeemed, pursuant to any
sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of
a Holder there of and the price or prices at which and the period or
periods within which and any terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and
$5,000 in the case of Unregistered Securities, the denominations in
which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the Securities
of that series are denominated, the coin or currency in which payment
of the principal of or interest on the Securities of such series
shall be payable;
(12) if the principal of or interest on the Securities of such
series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency other than that in which the
Securities are denominated, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(13) if the amount of payments of principal of and interest on
the Securities of the series may be determined with reference to an
index based on a coin or currency other than that in which the
Securities of the series are denominated, the manner in which such
amounts shall be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities) or Unregistered Securities
(with or without Coupons), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery of
Unregistered Securities or the payment of interest thereon and, if
other than as provided in Section 2.8, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a person
who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Issuer will have the option to redeem such Securities rather than pay
such additional amounts;
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(17) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with
respect to the Securities of such series;
(18) any other events of default or covenants with respect to
the Securities of such series;
(19) if the Securities of such series are to be convertible
into common stock of the Issuer, (i) the conversion price, (ii) the
conversion period, (iii) provisions as to whether conversion will be
at the option of the Holder or the Issuer and (iv) the events
requiring an adjustment to the conversion price and other provisions
affecting or relating to conversion (including in the event of the
redemption of such series of Securities and provisions pursuant to
which the number of shares of common stock to be received by holders
of such series of Securities upon conversion may be calculated
according to the market price of the common stock as of a particular
date); and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in the case
of Registered Securities as to denomination and except as may otherwise be
provided by or pursuant to the Board Resolution or Officer's Certificate
referred to above or as set forth in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same
time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board Resolution, such
Officer's Certificate or in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. The
Issuer may deliver Securities of any series having attached thereto
appropriate Coupons, if any, executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in
this Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the order of the Issuer (contained in the Issuer
Order referred to below in this Section) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be specified from
time to time by an Issuer Order. The maturity date, original issue date,
interest rate and any other terms of the Securities of such series and
Coupons, if any, appertaining thereto shall be determined by or pursuant to
such Issuer Order and procedures. If provided for in such procedures, such
Issuer Order may authorize authentication and delivery pursuant to oral
instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In authenticating
such Securities and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive (in the case of subparagraphs 2, 3 and 4 below only at or before
the time of the first request of the Issuer to the Trustee to authenticate
Securities of such series) and (subject to Section 6.1) shall be fully
protected in relying upon, unless and until such documents have been
superseded or revoked:
(1) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities and Coupons,
if any, are not to be delivered to the Issuer, provided that, with
respect to Securities of a series subject to a Periodic Offering,
(a) such Issuer Order may be delivered by the Issuer to the
Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (b) the Trustee shall
authenticate and deliver Securities of such series for original
issue from time to time, in an aggregate principal amount not
exceeding the aggregate principal amount established for such
series, pursuant to an Issuer Order or pursuant to procedures
acceptable to the Trustee as may be specified from time to time by
an Issuer Order, (c) the maturity date or dates, original issue
date or dates, interest rate or rates and any other terms of
Securities of such series shall be determined by an Issuer Order
or pursuant to such procedures and (d) if provided for in such
procedures, such Issuer Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the
Issuer or its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing;
(2) any Board Resolution, Officer's Certificate and/or
executed supplemental indenture referred to in Sections 2.1 and 2.3
by or pursuant to which the forms and terms of the Securities and
Coupons, if any, were established;
(3) an Officer's Certificate setting forth the form or forms
and terms of the Securities and Coupons, if any, stating that the
form or forms and terms of the Securities and Coupons, if any,
have been established pursuant to Sections 2.1 and 2.3 and comply
with this Indenture, and covering such other matters as the
Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions
of Counsel, or a letter addressed to the Trustee permitting it to
rely on one or more Opinions of Counsel, substantially to the effect
that:
(a) the forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with
the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms
of the Securities have been duly authorized and established
in conformity with the provisions of this Indenture, and, in
the case of an offering that is not underwritten, certain
terms of the Securities have been established pursuant to a
Board Resolution, an Officer's Certificate or a supplemental
indenture in accordance with this Indenture, and when such
other terms as are to be established pursuant to procedures
set forth in an Issuer Order shall have been established,
all such terms will have been duly authorized by the Issuer
and will have been established in conformity with the
provisions of this Indenture;
(c) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and
delivered to and duly paid for by the purchasers thereof,
they will have been duly issued under this Indenture, will
be entitled to the benefits of this Indenture, and will be
valid and binding obligations of the Issuer, enforceable in
accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if any, and the
availability of equitable remedies may be limited by
equitable principles of general applicability; and
(d) the execution and delivery by the Issuer of, and
the performance by the Issuer of its obligations under, the
Securities and Coupons, if any, will not contravene any
provision of any material applicable law or the certificate
of incorporation or by-laws of the Issuer or any agreement
or other instrument binding upon the Issuer or any of its
"significant subsidiaries" (as defined in Article 1 of
Regulation S-X under the Securities Act of 1933) that is
material to the Issuer and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Issuer or any
"significant subsidiary" (as defined above), and no consent,
approval, authorization or order of or qualification with
any governmental body or agency is required for the
performance by the Issuer of its obligations under the
Securities and Coupons, if any, except such as are specified
and have been obtained and such as may be required by the
securities or blue sky laws of the various states in
connection with the offer and sale of the Securities and
Coupons, if any.
In rendering such opinions, any counsel may qualify any
opinions as to enforceability by stating that such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium
and other similar laws affecting the rights and remedies of creditors and
is subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such
counsel may rely upon opinions of other counsel (copies of which shall be
delivered to the Trustee), who shall be counsel reasonably satisfactory to
the Trustee, in which case the opinion shall state that such counsel
believes he and the Trustee are entitled so to rely. Such counsel may also
state that, insofar as such opinion involves factual matters, he has
relied, to the extent he deems proper, upon certificates of officers of the
Issuer and its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken by the
Issuer or if the Trustee in good faith by its board of directors or board
of trustees, executive committee, or a trust committee of directors or
trustees or Responsible Officers shall determine that such action would
expose the Trustee to personal liability to existing Holders or would
affect the Trustee's own rights, duties or immunities under the Securities,
this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that
the Securities of a series are to be issued in the form of one or more
Registered Global Securities, then the Issuer shall execute and the Trustee
shall, in accordance with this Section and the Issuer Order with respect to
such series, authenticate and deliver one or more Registered Global
Securities that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Securities of such
series issued and not yet cancelled, (ii) shall be registered in the name
of the Depositary for such Registered Global Security or Securities or the
nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions and (iv) shall
bear a legend substantially to the following effect: "Unless and until it
is exchanged in whole or in part for Securities in definitive registered
form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by the chairman or vice chairman of its Board of Directors or its
president or any executive, senior or other vice president or its treasurer,
under its corporate seal (except in the case of Coupons) which may, but need
not, be attested. Such signatures may be the manual or facsimile signatures
of the present or any future such officers. The seal of the Issuer may be in
the form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors
or defects in any such reproduction of the seal or any such signature shall
not affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any
of the Securities or Coupons, if any, shall cease to be such officer before
the Security or Coupon so signed (or the Security to which the Coupon so
signed appertains) shall be authenticated and delivered by the Trustee or
disposed of by the Issuer, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the person who signed
such Security or Coupon had not ceased to be such officer of the Issuer;
and any Security or Coupon may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security or Coupon,
shall be the proper officers of the Issuer, although at the date of the
execution and delivery of this Indenture any such person was not such an
officer.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee by
the manual signature of one of its authorized officers, shall be entitled
to the benefits of this Indenture or be valid or obligatory for any
purpose. No Coupon shall be entitled to the benefits of this Indenture or
shall be valid and obligatory for any purpose until the certificate of
authentication on the Security to which such Coupon appertains shall have
been duly executed by the Trustee. The execution of such certificate by
the Trustee upon any Security executed by the Issuer shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series
are not so established, such Securities shall be issuable in denominations of
$1,000 and $5,000. The Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as
the officers of the Issuer executing the same may determine with the approval
of the Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in the
resolution or resolutions of the Board of Directors of the Issuer referred to
in Section 2.3. The Securities of each series shall bear interest, if any,
from the date, and such interest shall be payable on the dates, established as
contemplated by Section 2.3.
The person in whose name any Registered Security of any series
is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Issuer shall default in the payment of
the interest due on such interest payment date for such series, in which case
such defaulted interest shall be paid to the persons in whose names
Outstanding Registered Securities for such series are registered at the close
of business on a subsequent record date (which shall be not less than five
Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the
Holders of Registered Securities not less than 15 days preceding such
subsequent record date. The term "record date" as used with respect to any
interest payment date (except a date for payment of defaulted interest) for
the Securities of any series shall mean the date specified as such in the
terms of the Registered Securities of such series established as contemplated
by Section 2.3, or, if no such date is so established, if such interest
payment date is the first day of a calendar month, the fifteenth day of the
next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month,
whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer
will keep at each office or agency to be maintained for the purpose as
provided in Section 3.2 for each series of Securities a register or registers
in which, subject to such reasonable regulations as it may prescribe, it will
provide for the registration of Registered Securities of such series and the
registration of transfer of Registered Securities of such series. Such
register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open for inspection by
the Trustee.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be
maintained for the purpose as provided in Section 3.2, the Issuer shall
execute and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Registered Securities
of the same series, maturity date, interest rate and original issue date in
authorized denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached to any
temporary global Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities
of any series (other than a Registered Global Security, except as set forth
below) may be exchanged for a Registered Security or Registered Securities
of such series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be
exchanged at the agency of the Issuer that shall be maintained for such
purpose in accordance with Section 3.2 and upon payment, if the Issuer
shall so require, of the charges hereinafter provided. If the Securities
of any series are issued in both registered and unregistered form, except
as otherwise specified pursuant to Section 2.3, at the option of the Holder
thereof, Unregistered Securities of any series may be exchanged for
Registered Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Issuer that shall be
maintained for such purpose in accordance with Section 3.2, with, in the
case of Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities
of any series, maturity date, interest rate and original issue date are
issued in more than one authorized denomination, except as otherwise
specified pursuant to Section 2.3, such Unregistered Securities may be
exchanged for Unregistered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon surrender of
such Unregistered Securities to be exchanged at the agency of the Issuer
that shall be maintained for such purpose in accordance with Section 3.2 or
as specified pursuant to Section 2.3, with, in the case of Unregistered
Securities that have Coupons attached, all unmatured Coupons and all
matured Coupons in default thereto appertaining, and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. Registered
Securities of any series may not be exchanged for Unregistered Securities
of such series unless (1) otherwise specified pursuant to Section 2.3 and
(2) the Issuer has delivered to the Trustee an Opinion of Counsel that (x)
the Issuer has received from the Internal Revenue Service a ruling or (y)
since the date hereof, there has been a change in the applicable Federal
income tax law, in either case to the effect that the inclusion of terms
permitting Registered Securities to be exchanged for Unregistered
Securities would result in no adverse Federal income tax effect to the
Issuer or to any Holder. Whenever any Securities are so surrendered for
exchange, the Issuer shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive. All Securities and Coupons surrendered upon any exchange or
transfer provided for in this Indenture shall be promptly cancelled and
disposed of by the Trustee and the Trustee will deliver a certificate of
disposition thereof to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the
Issuer or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer
and the Trustee duly executed by the Holder or his attorney duly authorized
in writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with
any exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such
series to be redeemed or (b) any Securities selected, called or being
called for redemption, in whole or in part, except, in the case of any
Security to be redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered Global Security representing all
or a portion of the Securities of a series may not be transferred except as
a whole by the Depositary for such series to a nominee of such Depositary
or by a nominee of such Depositary to such Depositary or another nominee of
such Depositary or by such Depositary or any such nominee to a successor
Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities
of a series represented by one or more Registered Global Securities
notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Registered Securities or if at any time the Depositary
for such Registered Securities shall no longer be eligible under Section
2.4, the Issuer shall appoint a successor Depositary eligible under Section
2.4 with respect to such Registered Securities. If a successor Depositary
eligible under Section 2.4 for such Registered Securities is not appointed
by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such ineligibility, the Issuer's election pursuant to
Section 2.3 that such Registered Securities be represented by one or more
Registered Global Securities shall no longer be effective and the Issuer
will execute, and the Trustee, upon receipt of an Officer's Certificate for
the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive
registered form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form
of one or more Registered Global Securities shall no longer be represented
by a Registered Global Security or Securities. In such event the Issuer
will execute, and the Trustee, upon receipt of an Officer's Certificate for
the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive
registered form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities, in
exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Global Security, the
Depositary for such Registered Global Security may surrender such
Registered Global Security in exchange in whole or in part for Securities
of the same series in definitive registered form on such terms as are
acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
(i) to the Person specified by such Depositary a new
Registered Security or Securities of the same serie s, of any
authorized denominations as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person's
beneficial interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without coupons, in authorized
denominations, such Registered Global Security shall be cancelled by the
Trustee or an agent of the Issuer or the Trustee. Securities in definitive
registered form without coupons issued in exchange for a Registered Global
Security pursuant to this Section 2.8 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Issuer or the
Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series
of Securities to the contrary, none of the Issuer, the Trustee or any agent of
the Issuer or the Trustee (any of which, other than the Issuer, shall rely on
an Officer's Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the Issuer (such
as, for example, the inability of the Issuer to deduct from its income, as
computed for Federal income tax purposes, the interest payable on the
Unregistered Securities) under then applicable United States Federal income
tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and
upon the written request of any officer of the Issuer, the Trustee shall
authenticate and deliver a new Security of the same series, maturity date,
interest rate and original issue date, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons
so mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the Issuer
and to the Trustee and any agent of the Issuer or the Trustee such security
or indemnity as may be required by them to indemnify and defend and to save
each of them harmless and, in every case of destruction, loss or theft,
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof and in the case of
mutilation or defacement shall surrender the Security and related Coupons
to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) or its agent
connected therewith. In case any Security or Coupon which has matured or is
about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead
of issuing a substitute Security, pay or authorize the payment of the same or
the relevant Coupon (without surrender thereof except in the case of a
mutilated or defaced Security or Coupon), if the applicant for such payment
shall furnish to the Issuer and to the Trustee and any agent of the Issuer or
the Trustee such security or indemnity as any of them may require to save each
of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Issuer and the Trustee and any agent of
the Issuer or the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact that any
such Security or Coupon is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer, whether or not the
destroyed, lost or stolen Security or Coupon shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities or
Coupons of such series duly authenticated and delivered hereunder. All
Securities and Coupons shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced
or destroyed, lost or stolen Securities and Coupons and shall preclude any
and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities
without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction
Thereof. All Securities and Coupons surrendered for payment, redemption,
registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if surrendered to the Issuer or any
agent of the Issuer or the Trustee or any agent of the Trustee, shall be
delivered to the Trustee or its agent for cancellation or, if surrendered
to the Trustee, shall be cancelled by it; and no Securities or Coupons
shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee or its agent shall dispose of
cancelled Securities and Coupons held by it and deliver a certificate of
disposition to the Issuer. If the Issuer or its agent shall acquire any of
the Securities or Coupons, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to the
Trustee or its agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation
of definitive Securities for any series, the Issuer may execute and the
Trustee shall authenticate and deliver temporary Securities for such series
(printed, lithographed, typewritten or otherwise reproduced, in each case
in form satisfactory to the Trustee). Temporary Securities of any series
shall be issuable as Registered Securities without coupons, or as
Unregistered Securities with or without coupons attached thereto, of any
authorized denomination, and substantially in the form of the definitive
Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee as evidenced
by the execution and authentication thereof. Temporary Securities may
contain such references to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be executed by the Issuer and
be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the
Issuer for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer for such
purpose as specified pursuant to Section 2.3, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the
same series having authorized denominations and, in the case of
Unregistered Securities, having attached thereto any appropriate Coupons.
Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities
of such series, unless otherwise established pursuant to Section 2.3. The
provisions of this Section are subject to any restrictions or limitations
on the issue and delivery of temporary Unregistered Securities of any
series that may be established pursuant to Section 2.3 (including any
provision that Unregistered Securities of such series initially be issued
in the form of a single global Unregistered Security to be delivered to a
depositary or agency located outside the United States and the procedures
pursuant to which definitive or global Unregistered Securities of such
series would be issued in exchange for such temporary global Unregistered
Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at
the respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid
while such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable pursuant
to the terms of such Security) shall be paid, as to the installments of
interest evidenced by Coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if any,
only upon presentation of such Securities for notation thereon of the payment
of such interest, in each case subject to any restrictions that may be
established pursuant to Section 2.3. The interest on Registered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only to or upon the written order of the Holders
thereof and, at the option of the Issuer, may be paid by wire transfer or by
mailing checks for such interest payable to or upon the written order of such
Holders at their last addresses as they appear on the registry books of the
Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any
Registered Securities are authorized for issuance pursuant to this Indenture
or are outstanding hereunder, the Issuer will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Registered
Securities of each series may be presented for payment, where the Securities
of each series may be presented for exchange as is provided in this Indenture
and, if applicable, pursuant to Section 2.3 and where the Registered
Securities of each series may be presented for registration of transfer as in
this Indenture provided.
The Issuer will maintain one or more offices or agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any stock
exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on any
Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an agency of the Issuer within the United
States nor will any payment be made by transfer to an account in, or by mail
to an address in, the United States unless pursuant to applicable United
States laws and regulations then in effect such payment can be made without
adverse tax consequences to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and Coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Issuer maintained in the Borough of Manhattan, The City of New York if
such payment in Dollars at each agency maintained by the Issuer outside the
United States for payment on such Unregistered Securities is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City
of New York, an office or agency where notices and demands to or upon the
Issuer in respect of the Securities of any series, the Coupons appertaining
thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the
location of each such office or agency and of any change of location thereof.
In case the Issuer shall fail to maintain any agency required by this Section
to be located in the Borough of Manhattan, The City of New York, or shall fail
to give such notice of the location or of any change in the location of any of
the above agencies, presentations and demands may be made and notices may be
served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of a series and any
Coupons appertaining thereto may be presented for payment, where the
Securities of that series may be presented for exchange as provided in this
Indenture and pursuant to Section 2.3 and where the Registered Securities of
that series may be presented for registration of transfer as in this Indenture
provided, and the Issuer may from time to time rescind any such designation,
as the Issuer may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain the agencies provided for in this Section. The Issuer
will give to the Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on the Securities of
such series (whether such sums have been paid to it by the Issuer or
by any other obligor on the Securities of such series) in trust for
the benefit of the Holders of the Securities of such series, or
Coupons appertaining thereto, if any, or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to
make any payment of the principal of or interest on the Securities of
such series when the same shall be due and payable, and
(c) that it will pay any such sums so held in trust by it to
the Trustee upon the Trustee's written request at any time during the
continuance of the failure referred to in clause (b) above.
The Issuer will, on or prior to each due date of the
principal of or interest on the Securities of such series, deposit with the
paying agent a sum sufficient to pay such principal or interest so becoming
due, and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the
Securities of such series or the Coupons appertaining thereto a sum
sufficient to pay such principal or interest so becoming due. The Issuer
will promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but
subject to Section 10.1, the Issuer may at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or all
series of Securities hereunder, or for any other reason, pay or cause to be
paid to the Trustee all sums held in trust for any such series by the Issuer
or any paying agent hereunder, as required by this Section, such sums to be
held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will
furnish to the Trustee on or before January 31 in each year ? a brief
certificate (which need not comply with Section 11.5) from the principal
executive, financial or accounting officer of the Issuer stating that in the
course of the performance by the signer of his duties as an officer of the
Issuer he would normally have knowledge of any default or non-compliance by
the Issuer in the performance of any covenants or conditions contained in this
Indenture, stating whether or not he has knowledge of any such default or
non-compliance and, if so, describing each such default or non-compliance of
which the signer has knowledge and the nature thereof.
SECTION 3.6 Corporate Existence. Subject to Article Nine, the
Issuer will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence and the rights (charter and
statutory), licenses and franchises of the Issuer and its Subsidiaries;
provided, however, that the Issuer shall not be required to preserve any such
right, license or franchise, if, in the judgment of the Issuer, the
preservation thereof is no longer desirable in the conduct of the business of
the Issuer and its Subsidiaries taken as a whole and the loss thereof is not
disadvantageous in any material respect to the Securityholders.
SECTION 3.7 Maintenance of Properties. The Issuer will cause
all properties used in or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Issuer may be necessary,
so that the business carried on in connection therewith may be properly and
advantageously conducted at all time except to the extent that the Issuer may
be prevented from so doing by circumstances beyond its control; provided,
however, that nothing in this Section shall prevent the Issuer from
discontinuing the operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the
judgment of the Issuer desirable in the conduct of the business of the Issuer
or any Subsidiary and not disadvantageous in any material respect to the
Securityholders.
SECTION 3.8 Payment of Taxes and Other Claims. The Issuer
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent: (a) all taxes, assessments and governmental charges levied
or imposed upon the Issuer or any Subsidiary or upon the income, profits or
property of the Issuer or any Subsidiary; and (b) all lawful claims for labor,
materials, and supplies, which, if unpaid, might by law become a lien upon the
property of the Issuer or any Subsidiary; provided, however, that the Issuer
shall not be required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate proceedings; and
provided further that the Issuer shall not be required to cause to be paid or
discharged any such tax, assessment, charge or claim if the Issuer shall
determine that such payment is not advantageous to the conduct of the business
of the Issuer and its Subsidiaries taken as a whole and that the failure so to
pay or discharge is not disadvantageous in any material respect to the
Securityholders.
SECTION 3.9 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.10(a), 6.11, 8.2, 10.4
or 12.2, the party making such publication in the Borough of Manhattan, The
City of New York and London shall also, to the extent that notice is required
to be given to Holders of Securities of any series by applicable Luxembourg
law or stock exchange regulation, as evidenced by an Officer's Certificate
delivered to such party, make a similar publication in Luxembourg.
SECTION 3.10 SEC Reports. The Issuer shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the Commission, copies of its
annual report and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may by rules and
regulations prescribe) which the Issuer is required to file with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders. If and so long as the Trustee shall not be
the Security registrar for the Securities of any series, the Issuer and any
other obligor on the Securities will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders of the Registered Securities of such series
pursuant to Section 312 of the Trust Indenture Act of 1939 (a) semi-annually
not more than 5 days after each record date for the payment of interest on
such Registered Securities, as hereinabove specified, as of such record date
and on dates to be determined pursuant to Section 2.3 for non-interest bearing
Registered Securities in each year, and (b) at such other times as the Trustee
may request in writing, within thirty days after receipt by the Issuer of any
such request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists.
This Section intentionally left blank.
SECTION 4.3 Reports by the Issuer. The Issuer covenants to
file with the Trustee, within 15 days after the Issuer is required to file the
same with the Commission, copies of the annual reports and of the information,
documents, and other reports that the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 or pursuant to Section 314 of the Trust Indenture Act of 1939.
SECTION 4.4 Reports by the Trustee. Any Trustee's report
required under Section 313(a) of the Trust Indenture Act of 1939 shall be
transmitted on or before January 15 in each year beginning January 15,
1992, as provided in Section 313(c) of the Trust Indenture Act of 1939, so
long as any Securities are Outstanding hereunder, and shall be dated as of
a date convenient to the Trustee no more than 60 days prior thereto.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to Securities
of any series wherever used herein, means each one of the following events
which shall have occurred and be continuing (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any installment of interest upon
any of the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days; or
(b) default in the payment of all or any part of the principal
on any of the Securities of such series as and when the same shall
become due and payable either at maturity, upon any redemption, by
declaration or otherwise; or
(c) default in the payment of any sinking fund installment as
and when the same shall become due and payable by the terms of the
Securities of such series; or
(d) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of the
Issuer in the Securities of such series (other than a covenant or
agreement in respect of the Securities of such series a default in
the performance or breach of which is elsewhere in this Section
specifically dealt with) or contained in this Indenture (other than a
covenant or agreement included in this Indenture solely for the
benefit of a series of Securities other than such series) for a
period of 60 days after the date on which written notice specifying
such failure, stating that such notice is a "Notice of Default"
hereunder and demanding that the Issuer remedy the same, shall have
been given by registered or certified mail, return receipt requested,
to the Issuer by the Trustee, or to the Issuer and the Trustee by the
holders of at least 25% in aggregate principal amount of the
Outstanding Securities of all series affected thereby; or
(e) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Issuer or any
Restricted Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Issuer or of
any Restricted Subsidiary for any substantial part of its or their
property or ordering the winding up or liquidation of its or their
affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(f) the Issuer or any Restricted Subsidiary shall commence a
voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case under any such
law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Issuer or any Restricted Subsidiary
or for any substantial part of its or their property, or make any
general assignment for the benefit of creditors; or
(g) an event of default, as defined in any one or more
mortgages, indentures, instruments, bonds, debentures, notes or
other similar instruments under which there may be issued, or by
which there may be secured or evidenced, any indebtedness (other
than the Securities of such series or non-recourse obligations)
("Indebtedness") in excess of $10,000,000 for money borrowed by
the Issuer or a Restricted Subsidiary shall occur, if such event
of default shall result in the acceleration of such Indebtedness
prior to its expressed maturity unless such Indebtedness is
discharged or such acceleration is cured, waived, rescinded or
annulled within 10 days after written notice thereof shall have
been given by registered or certified mail, return receipt
requested, to the Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities (treated as one class) which
notice shall state that it is a "Notice of Default" hereunder; or
(h) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the
form of Security for such series;
provided that if any such default or acceleration referred to in clause (g)
above shall cease or be cured, waived, rescinded or annulled, then the Event
of Default hereunder by reason thereof shall be deemed likewise to have been
thereupon cured.
If an Event of Default described in clause (a), (b), (c), (d)
or (h) (if the Event of Default under clause (d) or (h), as the case may be,
is with respect to less than all series of Securities then Outstanding) occurs
and is continuing, then, and in each and every such case, except for any
series of Securities the principal of which shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of each such affected series then
Outstanding hereunder (voting as a single class) by notice in writing to the
Issuer (and to the Trustee if given by Securityholders), may declare the
entire principal (or, if the Securities of any such affected series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series) of all Securities of all such
affected series, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration, the same shall become
immediately due and payable. If an Event of Default described in clause (d)
or (h) (if the Event of Default under clause (d) or (h), as the case may be,
is with respect to all series of Securities then Outstanding), (e), (f) or (g)
occurs and is continuing, then and in each and every such case, unless the
principal of all the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of all the Securities then Outstanding hereunder (treated as one
class), by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then Outstanding, and
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Securities are Original
Issue Discount Securities, such portion of the principal as may be specified
in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Issuer shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of such series (or of all the
Securities, as the case may be) and the principal of any and all Securities of
each such series (or of all the Securities, as the case may be) which shall
have become due otherwise than by acceleration (with interest upon such
principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of each such series (or at
the respective rates of interest or Yields to Maturity of all the Securities,
as the case may be) to the date of such payment or deposit) and such amount as
shall be sufficient to cover reasonable compensation to the Trustee and each
predecessor Trustee, its agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and if any
and all Events of Default under the Indenture, other than the non-payment of
the principal of Securities which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein -- then and
in every such case the Holders of a majority in aggregate principal amount of
all the Securities of each such series, or of all the Securities, in each case
voting as a single class, then Outstanding, by written notice to the Issuer
and to the Trustee, may waive all defaults with respect to each such series
(or with respect to all the Securities, as the case may be) and rescind and
annul such declaration and its consequences, but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in case default shall be
made in the payment of any installment of interest on any of the Securities
of any series when such interest shall have become due and payable, and
such default shall have continued for a period of 30 days or (b) in case
default shall be made in the payment of all or any part of the principal of
any of the Securities of any series when the same shall have become due and
payable, whether upon maturity of the Securities of such series or upon any
redemption or by declaration or otherwise -- then upon demand of the
Trustee, the Issuer will pay to the Trustee for the benefit of the Holders
of the Securities of such series the whole amount that then shall have
become due and payable on all Securities of such series, and such Coupons,
for principal or interest, as the case may be (with interest to the date of
such payment upon the overdue principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue installments
of interest at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in the
Securities of such series); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee and each predecessor
Trustee, their respective agents, attorneys and counsel, and any expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to the
registered holders, whether or not the Securities of such Series be overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the
Issuer or other obligor upon the Securities and collect in the manner
provided by law out of the property of the Issuer or other obligor upon the
Securities, wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the
United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Issuer or
its property or such other obligor, or in case of any other comparable
judicial proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or such other
obligor, the Trustee, irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Securities of any series, and to file
such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee,
except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to
the Issuer or other obligor upon the Securities, or to the
creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the
Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of
the Securityholders to make payments to the Trustee, and, in the
event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts
as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons
appertaining to such Securities, may be enforced by the Trustee without the
possession of any of the Securities of such series or Coupons appertaining
to such Securities or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted
by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of any series shall, subject
to the subordination provisions hereof, be applied in the following order at
the date or dates fixed by the Trustee and, in case of the distribution of
such moneys on account of principal or interest, upon presentation of the
several Securities and Coupons appertaining to such Securities in respect of
which monies have been collected and stamping (or otherwise noting) thereon
the payment, or issuing Securities of such series in reduced principal amounts
in exchange for the presented Securities of like series if only partially
paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee
and their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount
then owing and unpaid upon all the Securities of such series for
principal and interest, with interest upon the overdue principal, and
(to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest at the same rate as the rate
of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series; and
in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to
the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of
any installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such
series, ratably to the aggregate of such principal and accrued and
unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the Trustee
may in its discretion proceed to protect and enforce the rights vested in
it by this Indenture by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture
or to enforce any other legal or equitable right vested in the Trustee by
this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No
Holder of any Security of any series or of any Coupon appertaining thereto
shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of
the continuance thereof, as hereinbefore provided, and unless also the Holders
of not less than 25% in aggregate principal amount of the Securities of each
affected series then Outstanding (treated as a single class) shall have made
written request upon the Trustee to institute such action or proceedings in
its own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 5.9; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security or Coupon with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of
any series or Coupons appertaining to such Securities shall have any right in
any manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other such Holder
of Securities or Coupons appertaining to such Securities, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all Holders of Securities of the
applicable series and Coupons appertaining to such Securities. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in this
Indenture and any provision of any Security, the right of any Holder of any
Security or Coupon to receive payment of the principal of and interest on such
Security or Coupon on or after the respective due dates expressed in such
Security or Coupon, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Section 5.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of
Securities or Coupons is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right
or power or shall be construed to be a waiver of any such Event of Default or
an acquiescence therein; and, subject to Section 5.6, every power and remedy
given by this Indenture or by law to the Trustee or to the Holders of
Securities or Coupons may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Holders of Securities or
Coupons.
SECTION 5.9 Control by Holders of Securities. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected (with all such series voting as a single class) at the time
Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; provided that such direction
shall not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section 6.1)
the Trustee shall have the right to decline to follow any such direction if
the Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors, the executive committee, or a trust committee
of directors or Responsible Officers of the Trustee shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions
or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series so
affected not joining in the giving of said direction, it being understood that
(subject to Section 6.1) the Trustee shall have no duty to ascertain whether
or not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee
in its discretion to take any action deemed proper by the Trustee and which is
not inconsistent with such direction or directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
acceleration of the maturity of any Securities as provided in Section 5.1, the
Holders of a majority in aggregate principal amount of the Securities of all
series at the time Outstanding with respect to which an event of default shall
have occurred and be continuing (voting as a single class) may on behalf of
the Holders of all such Securities waive any past default or Event of Default
described in Section 5.1 and its consequences, except a default in respect of
a covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected. In the case of any such
waiver, the Issuer, the Trustee and the Holders of all such Securities shall
be restored to their former positions and rights hereunder, respectively; but
no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, within ninety days
after the occurrence of a default with respect to the Securities of any
series, give notice of all defaults with respect to that series known to the
Trustee (i) if any Unregistered Securities of that series are then
Outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
3.9, at least once in an Authorized Newspaper in Luxembourg) and (ii) to all
Holders of Securities of such series in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act of 1939, unless in each case such
defaults shall have been cured before the mailing or publication of such
notice (the term "defaults" for the purpose of this Section being hereby
defined to mean any event or condition which is, or with notice or lapse of
time or both would become, an Event of Default); provided that, except in the
case of default in the payment of the principal of or interest on any of the
Securities of such series, or in the payment of any sinking fund installment on
such series, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a trust
committee of directors or trustees and/or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.
SECTION 5.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such series, or, in the
case of any suit relating to or arising under clause (d) or (h) of Section 5.1
(if the suit relates to Securities of more than one but less than all series),
l0% in aggregate principal amount of Securities then Outstanding and affected
thereby, or in the case of any suit relating to or arising under clause (d) or
(h) (if the suit under clause (d) or (h) relates to all the Securities then
Outstanding), (e), (f) or (g) of Section 5.1, 10% in aggregate principal
amount of all Securities then Outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed in such Security
or any date fixed for redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with
respect to such series, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture. In case an Event of Default
with respect to the Securities of a series has occurred (which has not been
cured or waived) the Trustee shall exercise with respect to such series of
Securities such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or
waiving of all such Events of Default with respect to such series
which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders pursuant to Section 5.9 relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there shall be reasonable ground
for believing that the repayment of such funds or adequate indemnity against
such liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and
subject to Section 315 of the Trust Indenture Act of 1939.
SECTION 6.2 Certain Rights of the Trustee. In furtherance of
and subject to the Trust Indenture Act of 1939, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or
any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, coupon,
security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof certified
by the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any written
advice or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders pursuant to
the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred therein
or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the
Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or
other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then Outstanding;
provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses
of every such investigation shall be paid by the Issuer or, if
paid by the Trustee or any predecessor Trustee, shall be repaid by
the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or sufficiency of this
Indenture or of the Securities or Coupons. The Trustee shall not be
accountable for the use or application by the Issuer of any of the Securities
or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities or Coupons with the same rights it would have if it were not the
Trustee or such agent and may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the
provisions of Section 10.4 hereof, all moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from
other funds except to the extent required by mandatory provisions of law.
Neither the Trustee nor any agent of the Issuer or the Trustee shall be
under any liability for interest on any moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Issuer covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this Indenture or the trusts hereunder and its duties hereunder, including the
costs and expenses of defending itself against or investigating any claim of
liability in the premises. The obligations of the Issuer under this Section
to compensate and indemnify the Trustee and each predecessor Trustee and to
pay or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be a senior claim to that of the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Securities or
Coupons, and the Securities are hereby subordinated to such senior claim.
SECTION 6.7 Right of Trustee to Rely on Officer's Certificate,
etc. Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and
established by an Officer's Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered
or omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION 6.8 Indentures Not Creating Potential Conflicting
Interests for the Trustee. The following indentures are hereby specifically
described for the purposes of Section 310(b)(1) of the Trust Indenture Act of
1939; this Indenture with respect to the Securities of any other series.
SECTION 6.9 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all times be a
corporation or banking association organized and doing business under the laws
of the United States of America or of any State or the District of Columbia
having a combined capital and surplus of at least $5,000,000, and which is
authorized under such laws to exercise corporate trust powers and is subject to
supervision or examination by Federal, State or District of Columbia
authority. Such corporation or banking association shall have a place of
business in the Borough of Manhattan, The City of New York if there be such a
corporation in such location willing to act upon reasonable and customary terms
and conditions. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
The provisions of this Section 6.9 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.10 Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series
of Securities by giving written notice of resignation to the Issuer and (i)
if any Unregistered Securities of a series affected are then Outstanding,
by giving notice of such resignation to the Holders thereof, by publication
at least once in an Authorized Newspaper in the Borough of Manhattan, The
City of New York, and at least once in an Authorized Newspaper in London
(and, if required by Section 3.9, at least once in an Authorized Newspaper
in Luxembourg), (ii) if any Unregistered Securities of a series affected
are then Outstanding, by mailing notice of such resignation to the Holders
thereof who have filed their names and addresses with the Trustee pursuant
to Section 313(c)(2) of the Trust Indenture Act of 1939 at such addresses
as were so furnished to the Trustee and (iii) by mailing notice of such
resignation to the Holders of then Outstanding Registered Securities of
each series affected at their addresses as they shall appear on the
registry books. Upon receiving such notice of resignation, the Issuer
shall promptly appoint a successor trustee or trustees with respect to the
applicable series by written instrument in duplicate, executed by authority
of the Board of Directors, one copy of which instrument shall be delivered
to the resigning Trustee and one copy to the successor trustee or trustees.
If no successor trustee shall have been so appointed with respect to any
series and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or
by any Securityholder who has been a bona fide Holder of a Security
or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and Section 310(a) of the Trust
Indenture Act of 1939 and shall fail to resign after written request
therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such
series by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to
the provisions of Section 315(e) of the Trust Indenture Act of 1939, any
Securityholder who has been a bona fide Holder of a Security or Securities of
such series for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee with respect
to such series. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities of each series at the time outstanding may at any time remove
the Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer
the evidence provided for in Section 7.1 of the action in that regard taken by
the Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall execute
and deliver to the Issuer and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations with respect to such series of its
predecessor hereunder, with like effect as if originally named as trustee
for such series hereunder; but, nevertheless, on the written request of the
Issuer or of the successor trustee, upon payment of its charges then
unpaid, the trustee ceasing to act shall, subject to Section 10.4, pay over
to the successor trustee all moneys at the time held by it hereunder and
shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of
any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a prior claim upon all
property or funds held or collected by such trustee to secure any amounts
then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
Trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6.11 unless at the time
of such acceptance such successor trustee shall be qualified under Section
310(b) of the Trust Indenture Act of 1939 and eligible under the provisions of
Section 6.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Issuer shall give notice thereof (a) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once
in an Authorized Newspaper in London (and, if required by Section 3.9, at
least once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof
who have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act of 1939, by mailing such notice to such
Holders at such addresses as were so furnished to the Trustee (and the Trustee
shall make such information available to the Issuer for such purpose) and (c)
to the Holders of Registered Securities of each series affected, by mailing
such notice to such Holders at their addresses as they shall appear on the
registry books. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 6.10.
If the Issuer fails to give such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provisions of Section 6.9,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any of the Securities of any series
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor Trustee
and deliver such Securities so authenticated; and, in case at that time any of
the Securities of any series shall not have been authenticated, any successor
to the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate
of the Trustee shall have; provided, that the right to adopt the certificate
of authentication of any predecessor Trustee or to authenticate Securities of
any series in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 6.13
This Section intentionally left blank.
SECTION 6.14 Appointment of Authenticating Agent. As long as
any Securities of a series remain Outstanding, the Trustee may, by an
instrument in writing, appoint with the approval of the Issuer an
authenticating agent (the "Authenticating Agent") which shall be authorized to
act on behalf of the Trustee to authenticate Securities, including Securities
issued upon exchange, registration of transfer, partial redemption or pursuant
to Section 2.9. Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee. Whenever reference is made in this Indenture to the authentication
and delivery of Securities of any series by the Trustee or to the Trustee's
Certificate of Authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent for such series and a Certificate of Authentication executed on behalf
of the Trustee by such Authenticating Agent. Such Authenticating Agent shall
at all times be a corporation organized and doing business under the laws of
the United States of America or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $5,000,000 (determined as provided in Section 6.9 with respect to the
Trustee) and subject to supervision or examination by Federal or State
authority.
Any corporation into which any Authenticating Agent may be
merged or converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the Trustee and to
the Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect
to one or more series of Securities, the Trustee shall upon receipt of an
Issuer Order appoint a successor Authenticating Agent and the Issuer shall
provide notice of such appointment to all Holders of Securities of such series
in the manner and to the extent provided in Section 11.4. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent.
The Issuer agrees to pay to the Authenticating Agent for such series from time
to time reasonable compensation. The Authenticating Agent for the Securities
of any series shall have no responsibility or liability for any action taken
by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Sections 6.1 and 6.2) conclusive
in favor of the Trustee and the Issuer, if made in the manner provided in this
Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in the
following manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments
of deeds or administer oaths that the person executing such
instruments acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such
notary or other such officer. Where such execution is by or on
behalf of any legal entity other than an individual, such certificate
or affidavit shall also constitute sufficient proof of the authority
of the person executing the same. The fact of the holding by any
Holder of an Unregistered Security of any series, and the identifying
number of such Security and the date of his holding the same, may be
proved by the production of such Security or by a certificate
executed by any trust company, bank, banker or recognized securities
dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each
such certificate shall be dated and shall state that on the date
thereof a Security of such series bearing a specified identifying
number was deposited with or exhibited to such trust company, bank,
banker or recognized securities dealer by the person named in such
certificate. Any such certificate may be issued in respect of one or
more Unregistered Securities of one or more series specified therein.
The holding by the person named in any such certificate of any
Unregistered Securities of any series specified therein shall be
presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding
(1) another certificate bearing a later date issued in respect of the
same Securities shall be produced, or (2) the Security of such series
specified in such certificate shall be produced by some other person,
or (3) the Security of such series specified in such certificate
shall have ceased to be Outstanding. Subject to Sections 6.1 and
6.2, the fact and date of the execution of any such instrument and
the amount and numbers of Securities of any series held by the person
so executing such instrument and the amount and numbers of any
Security or Securities for such series may also be proven in
accordance with such reasonable rules and regulations as may be
prescribed by the Trustee for such series or in any other manner
which the Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership of
such Securities shall be proved by the Security register or by a
certificate of the Security registrar.
The Issuer may set a record date for purposes of determining
the identity of Holders of Registered Securities of any series entitled to
vote or consent to any action referred to in Section 7.1, which record date
may be set at any time or from time to time by notice to the Trustee, for any
date or dates (in the case of any adjournment or reconsideration) not more
than 60 days nor less than five days prior to the proposed date of such vote
or consent, and thereafter, notwithstanding any other provisions hereof, with
respect to Registered Securities of any series, only Holders of Registered
Securities of such series of record on such record date shall be entitled to
so vote or give such consent or revoke such vote or consent.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of and, subject to the provisions of this
Indenture, interest on such Security and for all other purposes; and neither
the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary. The Issuer, the Trustee and any agent
of the Issuer or the Trustee may treat the Holder of any Unregistered Security
and the Holder of any Coupon as the absolute owner of such Unregistered
Security or Coupon (whether or not such Unregistered Security or Coupon shall
be overdue) for the purpose of receiving payment thereof or on account thereof
and for all other purposes and neither the Issuer, the Trustee, nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such person, or upon his order, shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Unregistered Security
or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have
concurred in any direction, consent or waiver under this Indenture,
Securities which are owned by the Issuer or any other obligor on the
Securities with respect to which such determination is being made or by any
person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer or any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or
waiver only Securities which the Trustee knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon
the Securities or any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer or
any other obligor on the Securities. In case of a dispute as to such
right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request
of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officer's Certificate listing and identifying all Securities, if any, known
by the Issuer to be owned or held by or for the account of any of the
above-described persons; and, subject to Sections 6.1 and 6.2, the Trustee
shall be entitled to accept such Officer's Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities
not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.1, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Securities of any or all series, as
the case may be, specified in this Indenture in connection with such
action, any Holder of a Security the serial number of which is shown by the
evidence to be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing written
notice at the Corporate Trust Office and upon proof of holding as provided
in this Article, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the Holder of any Security
shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon
any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the
case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders
of all the Securities affected by such action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer
and the Trustee shall consider to be for the protection of the
Holders of Securities or Coupons, and to make the occurrence, or
the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an
Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth;
provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available to
the Trustee upon such an Event of Default or may limit the right
of the Holders of a majority in aggregate principal amount of the
Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make any
other provisions as the Issuer may deem necessary or desirable,
provided that no such action shall adversely affect the interests
of the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any
series or of the Coupons appertaining to such Securities as
permitted by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as one class), the Issuer, when authorized by a resolution
of its Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order),
and the Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any
manner the rights of the Holders of the Securities of each such series or of
the Coupons appertaining to such Securities; provided, that no such
supplemental indenture shall (a) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption
thereof, or make the principal thereof (including any amount in respect of
original issue discount), or interest thereon payable in any coin or currency
other than that provided in the Securities and Coupons or in accordance with
the terms thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 5.1 or the amount thereof provable in
bankruptcy pursuant to Section 5.2, or alter the provisions of Section 11.11
or 11.12 or impair or affect the right of any Securityholder to institute suit
for the payment thereof or, if the Securities provide therefor, any right of
repayment at the option of the Securityholder, or, if the Securities provide
therefor, the terms and provisions of conversion of any such Securities, in
each case without the consent of the Holder of each Security so affected, or
(b) reduce the aforesaid percentage of Securities of any series, the consent
of the Holders of which is required for any such supplemental indenture,
without the consent of the Holders of each Security so affected.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of Holders of Securities of such
series, or of Coupons appertaining to such Securities, with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or of the Coupons
appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order) certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Holders of the
Securities as aforesaid and other documents, if any, required by Section 7.1,
the Trustee shall join with the Issuer in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (i) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they shall
appear on the Security register, (ii) if any Unregistered Securities of a
series affected thereby are then Outstanding, to the Holders thereof who have
filed their names and addresses with the Trustee pursuant to Section 313(c)(2)
of the Trust Indenture Act of 1939, by mailing a notice thereof by first-class
mail to such Holders at such addresses as were so furnished to the Trustee and
(iii) if any Unregistered Securities of a series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice thereof at
least once in an Authorized Newspaper in the Borough of Manhattan, The City of
New York and at least once in an Authorized Newspaper in London (and, if
required by Section 3.9, at least once in an Authorized Newspaper in
Luxembourg), and in each case such notice shall set forth in general terms the
substance of such supplemental indenture. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer and the
Holders of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Officer's
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article 8 complies with the
applicable provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
SECTION 8.6 Subordination Unimpaired. This Indenture may not
be amended to alter the subordination of any of the Outstanding Securities
without the written consent of each holder of Senior Indebtedness then
outstanding that would be adversely affected thereby.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Issuer May Consolidate, Etc., Only on Certain
Terms. The Issuer shall not consolidate with or merge into any other Person
or transfer or lease its properties and assets substantially as an entirety to
any Person, and the Issuer shall not permit any other Person to consolidate
with or merge into the Issuer, unless:
(a) either the Issuer shall be the continuing corporation, or
the corporation (if other than the Issuer formed by such
consolidation or into which the Issuer is merged or to which the
properties and assets of the Issuer substantially as an entirety are
transferred or leased shall be a corporation organized and existing
under the laws of the United States of America or any State thereof
or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the
Issuer under the Securities and this Indenture;
(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Issuer
or a Subsidiary as a result of such transaction as having been
incurred by the Issuer or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
(c) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer or lease and any such supplemental
indenture comply with this Article and that all conditions precedent
provided for herein relating to such transaction have been complied
with.
SECTION 9.2 Successor Corporation Substituted. The successor
corporation formed by such consolidation or into which the Issuer is merged or
to which such transfer or lease is made shall succeed to and be substituted
for, and may exercise every right and power of, the Issuer under this
Indenture with the same effect as if such successor corporation had been named
as the Issuer herein, and thereafter (except in the case of a lease to another
Person) the predecessor corporation shall be relieved of all obligations and
covenants under the Indenture and the Securities and, in the event of such
conveyance or transfer, any such predecessor corporation may be dissolved and
liquidated.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (A)
If at any time (a) the Issuer shall have paid or caused to be paid the
principal of and interest on all the Securities of any series Outstanding
hereunder and all unmatured Coupons appertaining thereto (other than
Securities of such series and Coupons appertaining thereto which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.9) as and when the same shall have become due and payable, or
(b) the Issuer shall have delivered to the Trustee for cancellation all
Securities of any series theretofore authenticated and all unmatured
Coupons appertaining thereto (other than any Securities of such series and
Coupons appertaining thereto which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section
2.9) or (c) in the case of any series of Securities where the exact amount
(including the currency of payment) of principal of and interest due on
which can be determined at the time of making the deposit referred to in
clause (ii) below, (i) all the Securities of such series and all unmatured
Coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and (ii) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the
entire amount in cash (other than moneys repaid by the Trustee or any
paying agent to the Issuer in accordance with Section 10.4) or, in the case
of any series of Securities the payments on which may only be made in
Dollars, direct obligations of the United States of America, backed by its
full faith and credit ("U.S. Government Obligations"), maturing as to
principal and interest at such times and in such amounts as will insure the
availability of cash, or a combination thereof, sufficient in the opinion
of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay (A) the
principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is due
and payable and (B) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series; and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable hereunder
by the Issuer, then this Indenture shall cease to be of further effect
(except as to (i) rights of registration of transfer and exchange of
Securities of such Series and of Coupons appertaining thereto and the
Issuer's right of optional redemption, if any, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii)
rights of holders of Securities and Coupons appertaining thereto to receive
payments of principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration), and remaining rights
of the Holders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations, duties and immunities of the Trustee hereunder, (v)
the rights of the Holders of Securities of such series and Coupons
appertaining thereto as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them, (vi) the
obligations of the Issuer under Section 3.2 and (vii) rights of conversion
in respect of such Securities, if any) and the Trustee, on demand of the
Issuer accompanied by an Officer's Certificate and an Opinion of Counsel
and at the cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture;
provided, that the rights of Holders of the Securities and Coupons to
receive amounts in respect of principal of and interest on the Securities
and Coupons held by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any securities exchange upon
which the Securities are listed. The Issuer agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
(B) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board Resolution,
Officer's Certificate or indenture supplemental hereto provided pursuant to
Section 2.3. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the exact amounts
(including the currency of payment) of principal of and interest due on which
can be determined at the time of making the deposit referred to in clause (a)
below, the Issuer shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of such a series and the Coupons
appertaining thereto on the date of the deposit referred to in subparagraph
(a) below, and the provisions of this Indenture with respect to the Securities
of such series and Coupons appertaining thereto shall no longer be in effect
(except as to (i) rights of registration of transfer and exchange of
Securities of such series and of Coupons appertaining thereto and the Issuer's
right of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of
Securities and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration), and remaining rights of the Holders to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations, duties
and immunities of the Trustee hereunder, (v) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to
all or any of them, (vi) the obligations of the Issuer under Section 3.2 and
(vii) rights of conversion in respect of such Securities, if any) and the
Trustee, at the expense of the Issuer, shall at the Issuer's request, execute
proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited with
the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders
of the Securities of such series and Coupons appertaining thereto
(i) cash in an amount, or (ii) in the case of any series of
Securities the payments on which may only be made in Dollars, U.S.
Government Obligations, maturing as to principal and interest at
such times and in such amounts as will insure the availability of
cash or (iii) a combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest on all Securities
of such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, any agreement or instrument to which
the Issuer is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or
(y) since the date hereof, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the Securities of such
series and Coupons appertaining thereto will not recognize income,
gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and
discharge had not occurred;
(d) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with; and
(e) no event or condition shall exist that, pursuant to the
provisions of Section 13.2, would prevent the Issuer from making
payments of the principal of or interest on the Securities of such
series and Coupons appertaining thereto on the date of such deposit.
(C) The Issuer shall be released from its obligations under
Sections 3.6, 3.7, 3.8 and 9.1 with respect to the Securities of any series,
and any Coupons appertaining thereto, Outstanding on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of any series, the Issuer may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in such Section, whether directly or indirectly by reason of any
reference elsewhere herein to such Section or by reason of any reference in
such Section to any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under Section 5.1,
but the remainder of this Indenture and such Securities and Coupons shall be
unaffected thereby. The following shall be the conditions to application of
this subsection C of this Section 10.1:
(a) The Issuer has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose
of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the holders of the
Securities of such series and coupons appertaining thereto, (i)
cash in an amount, or (ii) in the case of any series of Securities
the payments on which may only be made in Dollars, U.S.
Government Obligations maturing as to principal and interest at
such times and in such amounts as will insure the availability of
cash or (iii) a combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest on all Securities
of such series and Coupons appertaining thereto and (B) any
mandatory sinking fund payments on the day on which such payments
are due and payable in accordance with the terms of the Indenture
and the Securities of such series;
(b) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit;
(c) Such covenant defeasance shall not cause the Trustee to
have a conflicting interest as defined in Section 6.8 and for
purposes of the Trust Indenture Act of 1939 with respect to any
securities of the Issuer;
(d) Such covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Issuer is a party or by
which it is bound;
(e) Such covenant defeasance shall not cause any Securities
then listed on any registered national securities exchange under the
Securities Exchange Act of 1934, as amended, to be delisted;
(f) No event or condition shall exist that, pursuant to the
provisions of Section 13.2, would prevent the Issuer from making
payments of the principal of or interest on the Securities of such
series and Coupons appertaining thereto on the date of such deposit
or at any time during the period ending on the 91st day after the
date of such deposit;
(g) The Issuer shall have delivered to the Trustee an
Officer's Certificate and Opinion of Counsel to the effect that
the Holders of the Securities of such series and Coupons
appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred; and
(h) The Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to the covenant
defeasance contemplated by this provision have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.4, all moneys deposited with the
Trustee (or other trustee) pursuant to Section 10.1 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series and of Coupons appertaining thereto for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any
Security of any series or Coupons attached thereto and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Securities
of such series and of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the Trustee
or any paying agent with respect to such moneys shall thereupon cease;
provided, however, that the Trustee or such paying agent, before being
required to make any such repayment with respect to moneys deposited with it
for any payment (a) in respect of Registered Securities of any series, shall
at the expense of the Issuer, mail by first-class mail to Holders of such
Securities at their addresses as they shall appear on the Security register,
and (b) in respect of Unregistered Securities of any series, shall at the
expense of the Issuer cause to be published once, in an Authorized Newspaper
in the Borough of Manhattan, The City of New York and once in an Authorized
Newspaper in London (and, if required by Section 3.9, once in an Authorized
Newspaper in Luxembourg), notice, that such moneys remain and that, after a
date specified therein, which shall not be less than thirty days from the date
of such mailing or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 10.1 or the principal or interest received in
respect of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
Coupons appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Securities and the Coupons appertaining
thereto.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons. Nothing in this Indenture,
in the Securities or in the Coupons appertaining thereto, expressed or
implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the
holders of Senior Indebtedness and the Holders of the Securities or
Coupons, if any, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto
and their successors, the holders of the Senior Indebtedness and the
Holders of the Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer shall bind its successors
and assigns, whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons. Any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Holders of Securities or Coupons to or on the Issuer may
be given or served by being deposited postage prepaid, first-class mail
(except as otherwise specifically provided herein) addressed (until another
address of the Issuer is filed by the Issuer with the Trustee) to SunAmerica
Inc., 1 SunAmerica Center, Century City, Los, Angeles, California 90067-6022,
Attention: Secretary. Any notice, direction, request or demand by the Issuer
or any Holder of Securities or Coupons to or upon the Trustee shall be deemed
to have been sufficiently given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Trustee is filed by the Trustee with the Issuer)
to [_______________________________________], Attention: Corporate Trust
Services Division.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder entitled thereto, at his last address as it
appears in the Security register. In any case where notice to such Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5 Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that the
person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with and (d) a statement as to whether or not,
in the opinion of such person, such condition or covenant has been complied
with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any certificate, statement or opinion of counsel
may be based, insofar as it relates to factual matters, information with
respect to which is in the possession of the Issuer, upon the certificate,
statement or opinion of or representations by an officer or officers of the
Issuer, unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants in the employ of the Issuer, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for redemption or
repayment of any such Security or Coupon shall not be a Business Day, then
payment of interest or principal need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and no interest
shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by, or with
another provision (an "incorporated provision") included in this Indenture by
operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act of
1939, such imposed duties or incorporated provision shall control.
SECTION 11.8 New York Law to Govern. This Indenture and each
Security and Coupon shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of such State, except as may otherwise be required by mandatory
provisions of law.
SECTION 11.9 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officer's Certificate delivered pursuant to
Section 2.3 of this Indenture with respect to a particular series of
Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of
Securities of all series or all series affected by a particular action at the
time Outstanding and, at such time, there are Outstanding Securities of any
series which are denominated in a coin or currency other than Dollars
(including ECUs), then the principal amount of Securities of such series which
shall be deemed to be Outstanding for the purpose of taking such action shall
be that amount of Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section 11.11, Market Exchange Rate shall
mean the noon Dollar buying rate in The City of New York for cable transfers
of that currency as published by the Federal Reserve Bank of New York;
provided, however, in the case of ECUs, Market Exchange Rate shall mean the
rate of exchange determined by the Commission of the European Communities (or
any successor thereto) as published in the Official Journal of the European
Communities (such publication or any successor publication, the "Journal").
If such Market Exchange Rate is not available for any reason with respect to
such currency, the Trustee shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York
or, in the case of ECUs, the rate of exchange as published in the Journal, as
of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in
the country of issue of the currency in question, which for purposes of the
ECU shall be Brussels, Belgium, or such other quotations or, in the case of
ECU, rates of exchange as the Trustee shall deem appropriate. The provisions
of this paragraph shall apply in determining the equivalent principal amount
in respect of Securities of a series denominated in a currency other than
Dollars in connection with any action taken by Holders of Securities pursuant
to the terms of this Indenture including without limitation any determination
contemplated in Section 5.1(g).
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of or interest on the Securities of
any series (the "Required Currency") into a currency in which a judgment will
be rendered (the "Judgment Currency"), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the day on which final unappealable judgment is entered, unless
such day is not a New York Banking Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which final unappealable judgment is
entered and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance
with subsection (a)), in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be
payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of recovering in the
Required Currency the amount, if any, by which such actual receipt shall fall
short of the full amount of the Required Currency so expressed to be payable
and (iii) shall not be affected by judgment being obtained for any other sum
due under this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any series
to be redeemed as a whole or in part at the option of the Issuer shall be
given by mailing notice of such redemption by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the date fixed
for redemption to such Holders of Securities of such series at their last
addresses as they shall appear upon the registry books. Notice of
redemption to the Holders of Unregistered Securities to be redeemed as a
whole or in part, who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939 shall be
given by mailing notice of such redemption, by first class mail, postage
prepaid, at least 30 days and not more than 60 prior to the date fixed for
redemption, to such Holders at such addresses as were so furnished to the
Trustee (and, in the case of any such notice given by the Issuer, the
Trustee shall make such information available to the Issuer for such
purpose). Notice of redemption to all other Holders of Unregistered
Securities shall be published in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and in an Authorized Newspaper in London
(and, if required by Section 3.9, in an Authorized Newspaper in
Luxembourg), in each case, once in each of three successive calendar weeks,
the first publication to be not less than 30 nor more than 60 days prior to
the date fixed for redemption. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice. Failure to give notice by
mail, or any defect in the notice to the Holder of any Security of a series
designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of
such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender
of such Securities and, in the case of Securities with Coupons attached
thereto, of all Coupons appertaining thereto maturing after the date fixed for
redemption, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue. In case any Security of a series is to be redeemed in
part only the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof
will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the redemption date
all the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. The Issuer will deliver to the Trustee at least 70 days prior to
the date fixed for redemption an Officer's Certificate stating the aggregate
principal amount of Securities to be redeemed. In case of a redemption at the
election of the Issuer prior to the expiration of any restriction on such
redemption, the Issuer shall deliver to the Trustee, prior to the giving of
any notice of redemption to Holders pursuant to this Section, an Officer's
Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed,
the Trustee shall select, in such manner as it shall deem appropriate and
fair, Securities of such Series to be redeemed in whole or in part.
Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Issuer in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any
series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which
has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue, and the unmatured Coupons, if
any, appertaining thereto shall be void, and, except as provided in Sections
6.5 and 10.4, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture, and
the Holders thereof shall have no right in respect of such Securities except
the right to receive the redemption price thereof and unpaid interest to the
date fixed for redemption. On presentation and surrender of such Securities
at a place of payment specified in said notice, together with all Coupons, if
any, appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with Coupons attached thereto, to the Holders of the
Coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of
Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons maturing
after the date fixed for redemption, the surrender of such missing Coupon or
Coupons may be waived by the Issuer and the Trustee, if there be furnished to
each of them such security or indemnity as they may require to save each of
them harmless.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security
or Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in an Officer's Certificate delivered to the Trustee at
least 40 days prior to the last date on which notice of redemption may be
given as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified
in such written statement as directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Issuer
may at its option (a) deliver to the Trustee Securities of such series
theretofore purchased or otherwise acquired (except upon redemption
pursuant to the mandatory sinking fund) by the Issuer or receive credit for
Securities of such series (not previously so credited) theretofore
purchased or otherwise acquired (except as aforesaid) by the Issuer and
delivered to the Trustee for cancellation pursuant to Section 2.10, (b)
receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the
Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee an
Officer's Certificate (which need not contain the statements required by
Section 11.5) (a) specifying the portion of the mandatory sinking fund
payment to be satisfied by payment of cash and the portion to be satisfied
by credit of Securities of such series and the basis for such credit, (b)
stating that none of the Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events
of Default with respect to such series have occurred (which have not been
waived or cured) and are continuing and (d) stating whether or not the
Issuer intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount of
such optional sinking fund payment which the Issuer intends to pay on or
before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in
order for the Issuer to be entitled to credit therefor as aforesaid which
have not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such Officer's
Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officer's Certificate shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become unconditionally obligated to
make all the cash payments or payments therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the
Issuer, on or before any such 60th day, to deliver such Officer's
Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Issuer will
make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) or a lesser sum in Dollars (or the equivalent thereof in any Foreign
Currency or ECU) if the Issuer shall so request with respect to the Securities
of any particular series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such series at
the sinking fund redemption price together with accrued interest to the date
fixed for redemption. If such amount shall be $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) or less and the Issuer makes no such
request then it shall be carried over until a sum in excess of $50,000 (or the
equivalent thereof in any Foreign Currency or ECU) is available. The Trustee
shall select, in the manner provided in Section 12.2, for redemption on such
sinking fund payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be, and shall (if requested in
writing by the Issuer) inform the Issuer of the serial numbers of the
Securities of such series (or portions thereof) so selected. Securities shall
be excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officer's Certificate
delivered to the Trustee at least 60 days prior to the sinking fund payment
date as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified
in such Officer's Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer. The
Trustee, in the name and at the expense of the Issuer (or the Issuer, if it
shall so request the Trustee in writing) shall cause notice of redemption of
the Securities of such series to be given in substantially the manner provided
in Section 12.2 (and with the effect provided in Section 12.3) for the
redemption of Securities of such series in part at the option of the Issuer.
The amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be
applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities
of such series at maturity.
On or before each sinking fund payment date, the Issuer shall
pay to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of
redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such
Securities or of any Event of Default except that, where the giving of
notice of redemption of any Securities shall theretofore have been made,
the Trustee shall redeem or cause to be redeemed such Securities, provided
that it shall have received from the Issuer a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur,
and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such
Securities. In case such Event of Default shall have been waived as
provided in Section 5.10 or the default cured on or before the sixtieth day
preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Agreement to Subordinate. The Issuer, for
itself, its successors and assigns, covenants and agrees, and each Holder of a
Security or Coupon, by its acceptance thereof, likewise covenants and agrees,
that the payment of the principal of and interest on, each and all of the
Securities and any Coupons is hereby expressly subordinated, to the extent and
in the manner hereinafter in this Article 13 set forth, in right of payment to
the prior payment in full of all Senior Indebtedness.
SECTION 13.2 Rights of Senior Indebtedness in the Event of
Insolvency, etc., of the Issuer.
(a) In the event of any insolvency or bankruptcy proceedings,
and any receivership, liquidation, reorganization or other similar
proceedings in connection therewith, relative to the Issuer or to its
creditors, as such, or to its property, and in the event of any
proceedings for voluntary liquidation, dissolution or other winding
up of the Issuer, whether or not involving insolvency or bankruptcy,
and in the event of any execution sale, then the holders of Senior
Indebtedness shall be entitled to receive payment in full of
principal thereof and interest due thereon (including without
limitation, except to the extent, if any, prohibited by mandatory
provisions of law, post-petition interest in any such proceedings) in
money or money's worth of all Senior Indebtedness before the Holders
are entitled to receive any payment on account of the principal of or
interest on the indebtedness evidenced by the Securities or of the
Coupons, and to that end the holders of Senior Indebtedness shall be
entitled to receive for application in payment thereof any payment or
distribution of any kind or character, whether in cash or property or
securities, which may be payable or deliverable in connection with
any such proceedings or sale in respect of the principal of or
interest on the Securities or Coupons other than securities of the
Issuer as reorganized or readjusted or securities of the Issuer or
any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the
extent provided in this Article 13 with respect to the Securities or
Coupons, to the payment of all indebtedness of the nature of Senior
Indebtedness, provided that the rights of the holders of the Senior
Indebtedness are not altered by such reorganization or readjustment;
(b) In the event and during the continuation of any default in
payment of any Senior Indebtedness or if any event of default, as
therein defined, shall exist under any Senior Indebtedness or any
agreement pursuant to which any Senior Indebtedness is issued, no
payment of the principal of or interest on the Securities or Coupons
shall be made and the Issuer covenants that it will, upon
ascertaining any such default or event of default, provide written
notice to the Trustee of such default or event of default;
(c) In the event that the Securities of any series are declared
due and payable before their expressed maturity because of the
occurrence of an Event of Default (under circumstances when the
provisions of subsection (a) of this Section 13.2 shall not be
applicable), the holders of all Senior Indebtedness shall be entitled
to receive payment in full in money or money's worth of such Senior
Indebtedness before such Holders are entitled to receive any payment
on account of the principal of or interest on the Securities or
Coupons; and
(d) No holder of Senior Indebtedness shall be prejudiced in his
right to enforce subordination of the Securities or Coupons by any
act or failure to act on the part of the Issuer.
SECTION 13.3 Payment Over of Proceeds Received on Securities.
In the event that, notwithstanding the provisions of Section 13.2, any payment
or distribution of assets of the Issuer of any kind or character, whether in
cash, property or securities (other than securities of the Issuer as
reorganized or readjusted or securities of the Issuer or any other corporation
provided for by a plan of reorganization or readjustment the payment of which
is subordinate, at least to the extent provided in this Article 13 with
respect to the Securities or Coupons, to the payment of all indebtedness of
the nature of Senior Indebtedness, provided that the rights of the holders of
the Senior Indebtedness are not altered by such reorganization or
readjustment) shall be received by the Holders or by the Trustee for their
benefit in connection with any proceedings or sale referred to in subsection
(a) of Section 13.2 before all Senior Indebtedness is paid in full in money or
money's worth, such payment or distribution shall be paid over to the holders
of such Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, for application to the payment of all
Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall
have been paid in full in money or money's worth, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness.
From and after the payment in full in money or money's worth of
all Senior Indebtedness, the Holders (together with the holders of any other
indebtedness of the Issuer which is subordinate in right of payment to the
payment in full of all Senior Indebtedness, which is not subordinate in right
of payment to the Securities or Coupons and which by its terms grants such
right of subrogation to the holder thereof) shall be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
assets or securities of the Issuer applicable to the Senior Indebtedness until
the Securities and any Coupons shall be paid in full, and, for the purposes
of such subrogation, no such payments or distributions to the holders of
Senior Indebtedness of assets or securities, which otherwise would have been
payable or distributable to Holders, shall, as between the Issuer, its
creditors other than the holders of Senior Indebtedness, and the Holders, be
deemed to be a payment by the Issuer to or on account of the Senior
Indebtedness, it being understood that the provisions of this Article 13 are
and are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of the Senior Indebtedness, on the
other hand, and nothing contained in this Article 13 or elsewhere in this
Indenture or in the Securities or Coupons is intended to or shall impair as
between the Issuer, its creditors other than the holders of Senior
Indebtedness, and the Holders, the obligation of the Issuer, which is
unconditional and absolute, to pay to the Holders the principal of and
interest on the Securities or Coupons as and when the same shall become due
and payable in accordance with their terms, or to affect the relative rights
of the Holders and creditors of the Issuer other than the holders of the
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee
or the holder of any Security or Coupon from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture subject to the
rights of the holders of Senior Indebtedness, under Section 13.2, to receive
cash, property or securities of the Issuer otherwise payable or deliverable to
the holders of the Securities or Coupons.
Upon any distribution or payment in connection with any
proceedings or sale referred to in subsection (a) of Section 13.2, the
Trustee, subject as between the Trustee and the Holders to the provisions of
Sections 6.1 and 6.2 hereof, shall be entitled to rely upon a certificate of
the liquidating trustee or agent or other person making any distribution or
payment to the Trustee for the purpose of ascertaining the holders of Senior
Indebtedness entitled to participate in such payment or distribution, the
amount of such Senior Indebtedness or the amount payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto
or to this Article 13. In the event that the Trustee determines, in good
faith, that further evidence is required with respect to the right of any
person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Section 13.3, the Trustee may request such
person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such person, as to the extent to
which such person is entitled to participate in such payment or distribution,
and as to other facts pertinent to the rights of such person under this
Section 13.3, and if such evidence is not furnished, the Trustee may defer any
payment to such person pending judicial determination as to the right of such
person to receive such payment.
The Trustee, however, shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness, and shall not be liable to any
such holders if it shall in good faith pay over or distribute to Holders or
the Issuer or any other person moneys or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of Article 13 of this Indenture or
otherwise.
SECTION 13.4 Payments to Holders. Nothing contained in this
Article 13 or elsewhere in this Indenture, or in any of the Securities or in
any Coupon, shall prevent at any time, (a) the Issuer from making payments at
any time of principal of or interest on the Securities or Coupons, except
under the conditions described in Section 13.2 or during the pendency of any
proceedings or sale therein referred to, provided, however, that payments of
principal of or interest on the Securities or Coupons shall only be made by
the Issuer within three business days of the due dates for such payments or
(b) the application by the Trustee of any moneys deposited with it hereunder
to the payment of or on account of the principal of or interest on the
Securities or Coupons, if at the time of such deposit the Trustee did not have
written notice in accordance with Section 13.6 of any event prohibiting the
making of such deposit by the Issuer or if in the event of redemption, the
Trustee did not have such written notice prior to the time that the notice of
redemption pursuant to Section 12.2 was given (which notice of redemption
shall in no event be given more than 60 days prior to the date fixed for
redemption).
SECTION 13.5 Holders of Securities Authorize Trustee to
Effectuate Subordination of Securities. Each Holder by his acceptance of a
Security or Coupon authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate
the subordination as provided in this Article 13 and appoints the Trustee as
attorney-in-fact for any and all such purposes, including, in the event of any
dissolution, winding up, liquidation or reorganization of the Issuer (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment
for the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of the Issuer, the immediate filing of a claim for the
unpaid balance of such Holder's Securities or Coupons in the form required in
said proceedings and cause said claim to be approved.
SECTION 13.6 Notice to Trustee. Notwithstanding the
provisions of this Article 13 or any other provisions of this Indenture,
the Trustee shall not be charged with the knowledge of the existence of any
facts which would prohibit the making of any payment of moneys to the
Trustee, unless and until the Trustee shall have received written notice
thereof from the Issuer or from the holder or the representative of any
class of Senior Indebtedness; provided, however, that if at least two
Business Days prior to the date upon which by the terms hereof any such
monies may become payable for any purpose (including, without limitation,
the payment of either the cash amount payable at maturity or interest on
any Security or Coupon) the Trustee shall not have received with respect to
such monies the notice provided for in this Section 13.6, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have
full power and authority to receive such monies and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary, which may be received by it on or after such two
Business Days prior to such date.
SECTION 13.7 Trustee May Hold Senior Indebtedness. Subject
to the provisions of Section 6.13, the Trustee shall be entitled to all the
rights set forth in this Article 13 with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder
of Senior Indebtedness.
SECTION 13.8 Applicability of Article 13 to Paying Agents.
In case at any time any paying agent other than the Trustee shall be
appointed by the Issuer and be then acting hereunder, the term "Trustee" as
used in this Article 13 shall in such case (unless the context shall
otherwise require) be construed as extending to and including such paying
agent within its meaning as fully for all intents and purposes as if such
paying agent were named in this Article 13 in place of the Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of April __, 1993.
SUNAMERICA INC.
By _______________________
Title:
[CORPORATE SEAL]
Attest:
By _________________________
[Assistant Secretary]
[________________________],
as Trustee
By _______________________
Vice President
[CORPORATE SEAL]
Attest:
By _________________________
Trust Officer
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES)
On this ____ of ________, 199[_] before me personally came
, to me personally known, who, being by me duly sworn, did depose
and say that he resides at that he is the
of SunAmerica Inc., one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
_______________________
Notary Public
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this ____ of __________, 199[_] before me personally came
, to me personally known, who, being by me duly sworn, did depose
and say that he resides at that he is a
[ ] of THE FIRST NATIONAL BANK OF CHICAGO, one of the
corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
_____________________
Notary Public
Exhibit 4.3
SUNAMERICA INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
INDENTURE
-----------
Dated as of March 15, 1995
-----------
Junior Subordinated Debentures
TABLE OF CONTENTS(*)
_________
(*) This Table of Contents does not constitute part of the Indenture and
should not have any bearing upon the interpretation of any of its terms or
provisions.
PARTIES................................................................ 1
RECITALS:
Purpose of Indenture................................................... 1
Compliance with legal requirements..................................... 1
Purpose of and consideration for Indenture............................. 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Certain terms defined; other terms defined
in the Trust Indenture Act of 1939, as
amended, or by reference therein in the
Securities Act of 1933, as amended, to have
the meanings assigned therein........................... 2
Affiliate............................................... 2
Authenticating Agent.................................... 2
Board of Directors...................................... 2
Board Resolution........................................ 2
Business day............................................ 3
Certificate............................................. 3
Common Securities.......................................
Company................................................. 3
Corporate Trust Office.................................. 3
Declaration of Trust.................................... 3
Debenture or Debentures................................. 3
Debentureholder......................................... 3
Default................................................. 4
Depository.............................................. 4
Event of Default........................................ 4
Global Debenture........................................ 4
Governmental Obligations................................ 4
Guarantee............................................... 5
Indenture............................................... 5
Interest Payment Date................................... 5
Officers' Certificate................................... 5
Opinion of Counsel...................................... 5
Outstanding............................................. 5
Person.................................................. 6
Predecessor Debenture................................... 6
Preferred Securities.................................... 6
Property Trustee........................................ 6
Responsible Officer..................................... 6
Security Exchange....................................... 6
Senior Indebtedness..................................... 7
Subsidiary.............................................. 7
SunAmerica Capital Trust................................ 8
Trustee................................................. 8
Trust Indenture Act..................................... 8
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF DEBENTURES
SECTION 2.01. Designation, terms, amount, authentication and delivery
of Debentures........................................... 8
SECTION 2.02. Form of Debentures and Trustee's certificate............ 10
SECTION 2.03. Date and denominations of Debentures and provisions for
payment of principal, premium and interest............. 10
SECTION 2.04. Execution of Debentures................................. 11
SECTION 2.05. Exchange of Debentures.................................. 12
(a) Registration and transfer of Debentures............. 12
(b) Debentures to be accompanied by proper instruments
of transfer......................................... 13
(c) Charges upon exchange, transfer or registration of
Debentures.......................................... 13
(d) Restrictions on transfer or exchange at time of
redemption.......................................... 13
SECTION 2.06. Temporary Debentures.................................... 13
SECTION 2.07. Mutilated, destroyed, lost or stolen Debentures......... 14
SECTION 2.08. Cancellation of surrendered Debentures................. 15
SECTION 2.09. Provisions of Indenture and Debentures
for sole benefit of parties and
Debentureholders........................................ 15
SECTION 2.10. Appointment of Authenticating Agent..................... 15
SECTION 2.11. Global Debenture........................................ 16
(a) Authentication and Delivery; Legend................. 16
(b) Transfer of Global Debenture........................ 16
(c) Issuance of Debentures in definitive form........... 16
ARTICLE THREE
REDEMPTION OF DEBENTURES AND SINKING FUND PROVISIONS
SECTION 3.01. Redemption of Debentures................................ 17
SECTION 3.02. (a) Notice of redemption................................ 17
(b) Selection of Debentures in case less than all
Debentures to be redeemed........................... 18
SECTION 3.03. (a) When Debentures called for redemption become due and
payable............................................. 18
(b) Receipt of new Debenture upon partial payment....... 18
SECTION 3.04. Sinking Fund for Debentures............................. 18
SECTION 3.05. Satisfaction of Sinking Fund Payments with Debentures... 19
SECTION 3.06. Redemption of Debentures for Sinking Fund............... 19
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of principal of (and premium, if any) and
interest on Debentures.................................. 19
SECTION 4.02. Maintenance of office or agency for payment of
Debentures, designation of office or agency for payment,
registration, transfer and exchange of Debentures....... 20
SECTION 4.03. (a) Duties of paying agent.............................. 20
(b) Company as payment agent............................ 20
(c) Holding sums of trust............................... 21
SECTION 4.04. Appointment to fill vacancy in Office of Trustee........ 21
ARTICLE FIVE
DEBENTUREHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. Company to furnish Trustee information as to names and
addresses of Debentureholders........................... 21
SECTION 5.02. (a) Trustee to preserve information as to names and
addresses of Debentureholders received by it in
capacity of paying agent............................ 21
(b) Trustee may destroy list of Debentureholders on
certain condition................................... 21
(c) Trustee to make information as to names and
addresses of Debentureholders available to
"applicants" or mail communications to
Debentureholders in certain circumstances........... 21
(d) Procedure if Trustee elects not to make information
available to applicants............................. 22
(e) Company and Trustee not accountable for disclosure
of information...................................... 22
SECTION 5.03. (a) Annual and other reports to be filed by Company with
Trustee............................................. 23
(b) Additional information and reports to be filed with
Trustee and Securities and Exchange Commission...... 23
(c) Summaries of information and reports to be
transmitted by Company to Debentureholders.......... 23
(d) Annual Certificate to be furnished to Trustee....... 23
SECTION 5.04. (a) Trustee to transmit annual report to
Debentureholders.................................... 23
(b) Trustee to transmit certain further reports to
Debentureholders.................................... 24
(c) Copies of reports to be filed with stock exchanges
and Securities and Exchange Commission.............. 24
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. (a) Events of Default defined........................... 25
(b) Acceleration of maturity upon Event of Default...... 26
(c) Waiver of default and rescission of declaration of
maturity............................................ 26
(d) Restoration of former position and rights upon
curing default...................................... 26
(e) Certain rights of holders of Preferred Securities... 27
SECTION 6.02. (a) Covenant of Company to pay to Trustee whole amount
due on Debentures on Default in payment of interest
or principal (and premiums, if any)................. 27
(b) Trustee may recover judgment for whole amount due on
Debentures on failure of Company to pay............. 27
(c) Filing of proof of claim by Trustee in bankruptcy,
reorganization or receivership proceeding........... 28
(d) Rights of action and of asserting claims may be
enforced by Trustee without possession of Debentures 28
SECTION 6.03. Application of moneys collected by Trustee.............. 28
SECTION 6.04. Limitation on suits by holders of Debentures............ 29
SECTION 6.05. (a) Remedies cumulative................................. 29
(b) Delay or omission in exercise of rights not waiver
of default.......................................... 30
SECTION 6.06. Rights of holders of majority in principal amount of
Debentures to direct Trustee and to waive defaults...... 30
SECTION 6.07. Trustee to give notice of defaults known to it, but may
withhold in certain circumstances....................... 31
SECTION 6.08. Requirements of an undertaking to pay costs in certain
suits under Indenture or against Trustee................ 31
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. (a) Upon Event of Default occurring and continuing,
Trustee shall exercise powers vested in it, and
use same degree of care and skill in their exercise,
as prudent individual would use..................... 32
(b) Trustee not relieved from liability for negligence
or willful misconduct except as provided in this
section............................................. 32
(1) Prior to Event of Default and after the curing
of all Events of Default which may have
occurred....................................... 32
(i) Trustee not liable except for performance
of duties specifically set forth........... 32
(ii) In absence of bad faith, Trustee may
conclusively rely on certificates or
opinions furnished it hereunder, subject
to duty to examine the same if specifically
required to be furnished to it............. 32
(2) Trustee not liable for error of judgment made
in good faith by responsible officer unless
Trustee negligent.............................. 32
(3) Trustee not liable for action or non-action in
accordance with direction of holders of majority
in principal amount of debentures.............. 32
(4) Trustee need not expend own funds without
adequate indemnity............................. 33
SECTION 7.02. Subject to provisions of Section 7.01:
(a) Trustee may rely on documents believed genuine and
properly signed or presented........................ 33
(b) Sufficient evidence by certain instruments provided
for................................................. 33
(c) Trustee may consult with counsel and act on advice
or Opinion of Counsel............................... 33
(d) Trustee may require indemnity from Debentureholders. 33
(e) Trustee not liable for actions in good faith
believed to be authorized........................... 33
(f) Prior to Event of Default, Trustee not bound to
investigate facts or matters stated in certificates
etc., unless requested in writing by
Debentureholders.................................... 33
(g) Trustee may perform duties directly or through
agents or attorneys................................. 34
SECTION 7.03 (a) Trustee not liable for recitals in Indenture or in
Debentures.......................................... 34
(b) No representations by Trustee as to validity of
Indenture or of Debentures.......................... 34
(c) Trustee not accountable for use of Debentures or
proceeds............................................ 34
SECTION 7.04. Trustee, paying agent or Debenture Registrar may own
Debentures.............................................. 34
SECTION 7.05. Moneys received by Trustee to be held in trust without
interest................................................ 34
SECTION 7.06. (a) Trustee entitled to compensation, reimbursement and
indemnity........................................... 34
(b) Obligations to Trustee to be secured by lien prior
to Debentures....................................... 35
SECTION 7.07. Right of Trustee to rely on certificate of officers of
Company where no other evidence specifically prescribed. 35
SECTION 7.08. (a) Trustee acquiring conflicting interest to eliminate
conflict or resign.................................. 35
(b) Notice to Debentureholders in case of failure to
comply with subsection (a).......................... 35
(c) Definition of conflicting interest.................. 35
(d) Definition of certain terms......................... 38
(e) Calculation of percentages of Debentures............ 39
(f) Trustee resignation not required under certain
circumstances....................................... 40
SECTION 7.09. Requirements for eligibility of Trustee................. 41
SECTION 7.10. (a) Resignation of Trustee and appointment of successor. 41
(b) Removal of Trustee by Company or by court on
Debentureholders' application....................... 41
(c) Removal of Trustee by holders of majority in
principal amount of Debentures...................... 42
(d) Time when resignation or removal of Trustee
effective........................................... 42
(e) One Trustee for each series......................... 42
SECTION 7.11. (a) Acceptance by successor to Trustee.................. 42
(b) Trustee with respect to less than all series........ 42
(c) Company to confirm Trustee's rights................. 43
(d) Successor Trustee to be qualified................... 43
(e) Notice of succession................................ 43
SECTION 7.12. Successor to Trustee by merger, consolidation or
succession to business.................................. 43
SECTION 7.13. (a) Limitations on rights of Trustee as a creditor to
obtain payment of certain claims within four months
prior to default or during default, or to realize
on property as such creditor thereafter............. 44
(b) Certain creditor relationships excluded............. 46
(c) Definition of certain terms......................... 46
ARTICLE EIGHT
CONCERNING THE DEBENTUREHOLDERS
SECTION 8.01. Evidence of action by Debentureholders................. 47
SECTION 8.02. Proof of execution of instruments and of holding of
Debentures............................................. 48
SECTION 8.03. Who may be deemed owners of Debentures................. 48
SECTION 8.04. Debentures owned by Company or controlled or
controlling companies disregarded for certain purposes. 48
SECTION 8.05. Instruments executed by Debentureholders bind future
holders................................................ 49
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Purposes for which supplemental indenture may be
entered into without consent of Debentureholders....... 49
SECTION 9.02. Modification of Indenture with consent of
Debentureholders....................................... 50
SECTION 9.03. Effect of supplemental indentures...................... 51
SECTION 9.04. Debentures may bear notation of changes by supplemental
indentures............................................. 51
SECTION 9.05. Opinion of Counsel..................................... 52
ARTICLE TEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.01. Company May Consolidate, Etc. Only on Certain Terms.... 52
SECTION 10.02. Successor Corporation Substituted...................... 52
SECTION 10.03. Opinion of Counsel..................................... 52
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 11.01. Satisfaction and discharge of Indenture............... 53
SECTION 11.02. Application by Trustee of Funds Deposited for Payment
of Debentures......................................... 55
SECTION 11.03. Application by Trustee of funds deposited for payment
of Debentures......................................... 55
SECTION 11.04. Repayment of moneys held by paying agent.............. 55
SECTION 11.05. Repayment of moneys held by Trustee................... 55
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Incorporators, stockholders, officers and directors
of Company exempt from individual liability........... 56
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors and assigns of Company bound by Indenture.. 56
SECTION 13.02. Acts of board, committee or officer of successor
company valid......................................... 56
SECTION 13.03. Surrender of powers of Company........................ 56
SECTION 13.04. Required notices or demands may be served by mail..... 56
SECTION 13.05. Indenture and Debentures to be construed in accordance
with laws of the State of New York.................... 57
SECTION 13.06. (a) Officers' Certificate and Opinion of Counsel to
be furnished upon applications or demands by
Company.......................................... 57
(b) Statements to be included in each certificate or
opinion with respect to compliance with condition
or covenant...................................... 57
SECTION 13.07. Payments due on Sundays or holidays................... 57
SECTION 13.08. Provisions required by Trust Indenture Act of 1939 to
control............................................... 57
SECTION 13.09. Indenture may be executed in counterparts............. 58
SECTION 13.10. Separability of indenture provisions.................. 58
SECTION 13.11. Assignment by Company to subsidiary................... 58
SECTION 13.12. Holders of Preferred Securities as third party
beneficiaries of this Indenture; holders of Preferred
Securities may institute legal proceedings against
the Company in certain cases.......................... 58
ARTICLE FOURTEEN
SUBORDINATION OF DEBENTURES
SECTION 14.01. Agreement to Subordinate.............................. 58
SECTION 14.02. Rights of Senior Indebtedness In the Event of
Insolvency, etc. of the Company....................... 58
SECTION 14.03. Payment Over of Proceeds Received on Debentures....... 59
SECTION 14.04. Payments to Debentureholders.......................... 61
SECTION 14.05. Holders of Debentures Authorize Trustee to Effectuate
Subordination of Debentures........................... 61
SECTION 14.06. Notice to Trustee..................................... 61
SECTION 14.07. Trustee's May Hold Senior Indebtedness................ 62
SECTION 14.08. Applicability of Article Fourteen to Paying Agents.... 62
ACCEPTANCE OF TRUST BY TRUSTEE....................................... 62
TESTIMONIUM.......................................................... 63
SIGNATURES AND SEALS................................................. 64
ACKNOWLEDGMENTS...................................................... 65
THIS INDENTURE, is dated as of the 15th day of March, 1995, between
SunAmerica Inc., a corporation duly organized and existing under the laws of
the State of Maryland (hereinafter sometimes referred to as the "Company"),
and The First National Bank of Chicago, a national banking association, as
Trustee (hereinafter sometimes referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has fully
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured debentures (hereinafter referred to as the
"Debentures"), in an unlimited aggregate principal amount to be issued from
time to time in one or more series as in this Indenture provided, as registered
Debentures without coupons, to be authenticated by the certificate of the
Trustee;
WHEREAS, to provide the terms and conditions upon which the Debentures
are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture;
WHEREAS, the Debentures and the certificate of authentication to be
borne by the Debentures (the "Certificate of Authentication") are to be
substantially in such forms as may be approved by the Board of Directors (as
defined below) or set forth in any indenture supplemental to this Indenture;
AND WHEREAS, all acts and things necessary to make the Debentures
issued pursuant hereto, when executed by the Company and authenticated and
delivered by the Trustee as in this Indenture provided, the valid, binding and
legal obligations of the Company, and to constitute these presents a valid
indenture and agreement according to its terms, have been done and performed
or will be done and performed prior to the issuance of such Debentures, and the
execution of this Indenture has been and the issuance hereunder of the
Debentures has been or will be prior to issuance in all respects duly
authorized, and the Company, in the exercise of the legal right and power in
it vested, executes this Indenture and proposes to make, execute, issue and
deliver the Debentures:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Debentures are and are to be authenticated, issued and delivered, and in
consideration of the premises and of the acquisition and acceptance of the
Debentures by the holders thereof, the Company covenants and agrees with the
Trustee, for the equal and proportionate benefit (subject to the provisions of
this Indenture) of the respective holders from time to time of the Debentures,
without any discrimination, preference or priority of any one Debenture over
any other by reason of priority in the time of issue, sale or negotiation
thereof, or otherwise, except as provided herein, as follows:
ARTICLE ONE
Definitions
SECTION 1.01. The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture, any resolution of the Board of
Directors of the Company and of any indenture supplemental hereof shall have
the respective meanings specified in this Section. All other terms used in
this Indenture which are defined in the Trust Indenture Act of 1939, as
amended, or which are by reference in such Act defined in the Securities Act
of 1933, as amended (except as herein otherwise expressly provided or unless
the context otherwise requires), shall have the meanings assigned to such
terms in said Trust Indenture Act and in said Securities Act as in force at
the date of this instrument.
Affiliate:
The term "Affiliate" of the Company shall mean any company at least a majority
of whose outstanding voting stock shall at the time be owned by the Company,
or by one or more direct or indirect subsidiaries of the Company or by the
Company and one or more direct or indirect subsidiaries of the Company. For
the purposes only of this definition of the term "Affiliate", the term "voting
stock", as applied to the stock of any company, shall mean stock of any class
or classes having ordinary voting power for the election of a majority of the
directors of such company, other than stock having such power only by reason
of the occurrence of a contingency.
Authenticating Agent:
The term "Authenticating Agent" means an authenticating agent with respect to
all or any of the series of Debentures, as the case may be, appointed with
respect to all or any series of the Debentures, as the case may be, by the
Trustee pursuant to Section 2.10.
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors of the
Company, or any committee of such Board duly authorized to act hereunder.
Board Resolution:
The term "Board Resolution" shall mean a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Company to have
been adopted or consented to by the Board of Directors and to be in full force
and effect, and delivered to the Trustee.
Business day:
The term "business day", with respect to any series of Debentures, shall mean
any day other than a day on which banking institutions in the Borough of
Manhattan, the City and State of New York, are authorized or obligated by law
or executive order to close.
Certificate:
The term "Certificate" shall mean a certificate signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company. The Certificate need not comply with the provisions of
Section 13.06.
Common Securities:
The term "Common Securities" shall mean the common undivided beneficial
interests in the assets of the applicable SunAmerica Capital Trust.
Company:
The term "Company" shall mean SunAmerica Inc., a corporation duly organized
and existing under the laws of the State of Maryland, and, subject to the
provisions of Article Ten, shall also include its successors and assigns.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of the execution of this Indenture is
located at One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126,
Attention: Corporate Trust Administration.
Declaration of Trust:
The term "Declaration of Trust" shall mean the Declaration of Trust of the
SunAmerica Capital Trust, if any, specified in the applicable Board Resolution
or supplemental indenture establishing a particular series of Debentures
pursuant to Section 2.01 hereof.
Debenture or Debentures:
The term "Debenture" or "Debentures" shall mean any Debenture or Debentures,
as the case may be, authenticated and delivered under this Indenture.
Debentureholder:
The term "Debentureholder", "holder of Debentures", "registered holder", or
other similar term, shall mean the person or persons in whose name or names a
particular Debenture shall be registered on the books of the Company kept for
the purpose in accordance with the terms of this Indenture.
Default:
The term "Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
Depository:
The term "Depository" shall mean, with respect to Debentures of any series,
for which the Company shall determine that such Debentures will be issued as a
Global Debenture, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or other
applicable statute or regulation, which, in each case, shall be designated by
the Company pursuant to either Section 2.01 or 2.11.
Event of Default:
The term "Event of Default" with respect to Debentures of a particular series
shall mean any event specified in Section 6.01(a), continued for the period of
time, if any, therein designated.
Global Debenture:
The term "Global Debenture" shall mean, with respect to any series of
Debentures, a Debenture executed by the Company and delivered by the Trustee
to the Depository or pursuant to the Depository's instruction, all in
accordance with the Indenture, which shall be registered in the name of the
Depository or its nominee.
Governmental Obligations:
The term, "Governmental Obligations" shall mean securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank (as defined in Section 3(a)
(2) of the Securities Act of 1933, as amended) as custodian with respect to
any such Governmental Obligation or a specific payment of principal of or
interest on any such Governmental Obligation held by such custodian for the
account of the holder of such depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the Governmental Obligation or the
specific payment of principal of or interest on the Governmental Obligation
evidenced by such depository receipt.
Guarantee:
The term "Guarantee" shall mean the guarantee, if any, that the Company may
enter into that operates directly or indirectly for the benefit of holders of
Preferred Securities issued by a SunAmerica Capital Trust.
Indenture:
The term "Indenture" shall mean this instrument as originally executed, or, if
amended or supplemented as herein provided, as so amended or supplemented.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to any installment of
interest on a Debenture of a particular series shall mean the date specified
in such Debenture or in a Board Resolution or in an indenture supplemental
hereto with respect to such series as the fixed date on which an installment
of interest with respect to Debentures of that series is due and payable.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant Treasurer
or the Controller or an Assistant Controller or the Secretary or an Assistant
Secretary of the Company and who shall be satisfactory to the Trustee. Each
such certificate shall include the statements provided for in Section 13.06,
if and to the extent required by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of or counsel for the Company and who shall be
satisfactory to the Trustee. Each such opinion shall include the statements
provided for in section 13.06, if and to the extent required by the provisions
thereof.
Outstanding:
The term "Outstanding", when used with reference to Debentures of any series,
shall, subject to the provisions of Section 8.01, mean, as of any particular
time, all Debentures of that series theretofore authenticated and delivered by
the Trustee under this Indenture, except (a) Debentures theretofore canceled
by the Trustee or any paying agent, or delivered to the Trustee or any paying
agent for cancellation or which have previously been canceled; (b) Debentures
or portions thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust for the holders of such
Debentures by the Company (if the Company shall act as its own paying agent);
provided, however, that if such Debentures or portions of such Debentures are
to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as in Article Three provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and (c) Debentures in
lieu of or in substitution for which other Debentures shall have been
authenticated and delivered pursuant to the terms of Section 2.07.
Person:
The term "Person" means any individual, corporation, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Predecessor Debenture:
The term "Predecessor Debenture" of any particular Debenture shall mean every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 2.07 in
lieu of a lost, destroyed or stolen Debenture shall be deemed to evidence the
same debt as the lost, destroyed or stolen Debenture.
Preferred Securities:
The term "Preferred Securities" shall mean the preferred undivided beneficial
interests in the assets of the applicable SunAmerica Capital Trust.
Property Trustee:
The term "Property Trustee" means the entity performing the function of the
Property Trustee under the applicable Declaration of Trust of a SunAmerica
Capital Trust.
Responsible Officer:
The term "Responsible Officer" when used with respect to the Trustee shall
mean the chairman of the board of directors, the president, any vice
president, the secretary, the treasurer, any trust officer, any corporate
trust officer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his or her knowledge of and familiarity
with the particular subject.
Security Exchange:
"Security Exchange" when used with respect to the Debentures of any series
which are held as trust assets of a SunAmerica Capital Trust pursuant to the
Declaration of Trust of such SunAmerica Capital Trust, means the distribution
of the Debentures of such series by such SunAmerica Capital Trust in exchange
for the Preferred Securities and Common Securities of such SunAmerica Capital
Trust in dissolution of such SunAmerica Capital Trust pursuant to the
Declaration of Trust of such SunAmerica Capital Trust.
Senior Indebtedness:
The term "Senior Indebtedness" means the principal of and premium, if any, and
interest on (a) all indebtedness of the Company, whether outstanding on the
date of this Indenture or thereafter created, (i) for money borrowed by the
Company (including, without limitation, indebtedness issued or to be issued
pursuant to the Subordinated Indenture dated as of April 15, 1993 between the
Company and The First National Bank of Chicago, as Trustee), (ii) for money
borrowed by, or obligations of, others and either assumed or guaranteed,
directly or indirectly, by the Company, (iii) in respect of letters of credit
and acceptances issued or made by banks, or (iv) constituting purchase money
indebtedness, or indebtedness secured by property included in the property,
plant and equipment accounts of the Company at the time of the acquisition of
such property by the Company, for the payment of which the Company is directly
liable, and (b) all deferrals, renewals, extensions and refundings of, and
amendments, modifications and supplements to, any such indebtedness. As used
in the preceding sentence the term "purchase money indebtedness" means
indebtedness evidenced by a note, debenture, bond or other instrument (whether
or not secured by any lien or other security interest) issued or assumed as
all of a part of the consideration for the acquisition of property, whether by
purchase, merger, consolidation or otherwise, unless by its terms such
indebtedness is subordinate to other indebtedness of the Company.
Notwithstanding anything to the contrary in this Indenture or the Debentures,
Senior Indebtedness shall not include (i) any indebtedness of the Company
which, by its terms or the terms of the instrument creating or evidencing it,
is subordinate in right of payment to or pari passu with the Debentures, as
the case may be, and, in particular, the Debentures shall rank pari passu with
all other debt securities and guarantees in respect of those debt securities,
issued to (y) any other SunAmerica Capital Trust and (z) any other trusts,
partnerships or any other entity affiliated with the Company which is a
financing vehicle of the Company ("Financing Entity") in connection with an
issuance of preferred securities by such Financing Entity, or (ii) any
indebtedness of the Company to a Subsidiary.
Subsidiary:
The term "Subsidiary" shall mean any corporation at least a majority of whose
outstanding voting stock shall at the time be owned by the Company or by one
or more subsidiaries or by the Company and one or more Subsidiaries. For the
purposes only of this definition of the term "Subsidiary", the term "voting
stock", as applied to the stock of any corporation, shall mean stock of any
class or classes having ordinary voting power for the election of a majority
of the directors of such corporation, other than stock having such power only
by reason of the occurrence of a contingency.
SunAmerica Capital Trust:
The term "SunAmerica Capital Trust" shall mean such statutory business trust
created under the laws of the State of Delaware specified in the applicable
Board Resolution or supplemental indenture establishing a particular series of
Debentures pursuant to Section 2.01 hereof.
Trustee:
The term "Trustee" shall mean The First National Bank of Chicago and, subject
to the provisions of Article Seven, shall also include its successors and
assigns, and, if at any time there is more than one person acting in such
capacity hereunder, "Trustee" shall mean each such person. The term "Trustee"
as used with respect to a particular series of the Debentures shall mean the
trustee with respect to that series.
Trust Indenture Act:
The term "Trust Indenture Act", subject to the provisions of Section 9.01 and
9.02, shall mean the Trust Indenture Act of 1939, as amended and in effect at
the date of execution of this Indenture.
ARTICLE TWO
Issue, Description, Terms, Execution,
Registration and Exchange of Debentures
Section 2.01. The aggregate principal amount of Debentures which may
be authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series up to the aggregate
principal amount of Debentures of that series from time to time authorized by
or pursuant to a Board Resolution or pursuant to one or more indentures
supplemental hereto, prior to the initial issuance of Debentures of a
particular series. Prior to the initial issuance of Debentures of any series,
there shall be established in or pursuant to a Board Resolution, and set forth
in an Officers' Certificate, or established in one or more indentures
supplemental hereto:
(1) the title of the Debentures of the series (which shall
distinguish the Debentures of the series from all other Debentures);
(2) any limit upon the aggregate principal amount of the Debentures
of that series which may be authenticated and delivered under this Indenture
(except for Debentures authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Debentures of that
series):
(3) the date or dates on which the principal of the Debentures of
the series is payable;
(4) the rate or rates at which the Debentures of the series shall
bear interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(6) the right, if any, to extend the interest payment periods and
the duration of such extension;
(7) the period or periods within which, the price or prices at
which, and the terms and conditions upon which, Debentures of the series may
be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Debentures of the series pursuant to any sinking fund or analogous
provisions (including payments made in cash in anticipation of future
sinking fund obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at which, and the terms
and conditions upon which, Debentures of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) the form of the Debentures of the series including the form of
the Certificate of Authentication for such series;
(10) if other than denominations of $25 or any integral multiple
thereof, the denominations in which the Debentures of the series shall be
issuable;
(11) any and all other terms with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture); and
(12) whether the Debentures are issuable as a Global Debenture and,
in such case, the identity of the Depository for such series.
(13) If the Debentures of such series are to be deposited as trust
assets in a SunAmerica Capital Trust the name of the applicable SunAmerica
Capital Trust (which shall distinguish such statutory business trust from
all other SunAmerica Capital Trusts) into which the Debentures of such
series are to be deposited as trust assets and the date of its Declaration
of Trust.
All Debentures of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 2.02. The Debentures of any series and the Trustee's
certificate of authentication to be borne by such Debentures shall be
substantially of the tenor and purport as set forth in one or more indentures
supplemental hereto or as provided in a Board Resolution and as set forth in
an Officers' Certificate, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as
are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which
Debentures of that series may be listed, or to conform to usage.
SECTION 2.03. The Debentures shall be issuable as registered
Debentures and in the denominations of $25 or any integral multiple thereof,
subject to Section 2.01(10). The Debentures of a particular series shall bear
interest payable on the dates and at the rate specified with respect to that
series. The principal of and the interest on the Debentures of any series, as
well as any premium thereon in case of redemption thereof prior to maturity,
shall be payable in the coin or currency of the United States of America which
at the time is legal tender for public and private debt, at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
the City and State of New York. Each Debenture shall be dated the date of its
authentication. Interest on the Debentures shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The interest installment on any Debenture which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Debentures of that series shall be paid to the person in whose name said
Debenture (or one or more Predecessor Debentures) is registered at the close
of business on the regular record date for such interest installment. In the
event that any Debenture of a particular series or portion thereof is called
for redemption and the redemption date is subsequent to a regular record date
with respect to any Interest Payment Date and prior to such Interest Payment
Date, interest on such Debenture will be paid upon presentation and surrender
of such Debenture as provided in Section 3.03.
Any interest on any Debenture which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Debentures of the
same series (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered holder on the relevant regular record date by virtue
of having been such holder; and such Defaulted Interest shall be paid by the
Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Debentures to the persons in whose names such Debentures (or their
respective Predecessor Debentures) are registered at the close of business
on a special record date for the payment of such Defaulted Interest, which
shall be fixed in the following manner: the Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on each
such Debenture and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest which shall
not be more than 15 nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such special record date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed, first class
postage prepaid, to each Debentureholder at his or her address as it appears
in the Debenture Register (as hereinafter defined), not less than 10 days
prior to such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the persons in whose
names such Debentures (or their Predecessor Debentures) are registered on
such special record date and shall be no longer payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Debentures in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Debentures may be listed, and upon
such notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of
Debentures pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Debentures with respect to
any Interest Payment Date for such series shall mean either the fifteenth day
of the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the first day of a month, or the last day of the
month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the fifteenth day of a month, whether or not such
date is business day.
Subject to the foregoing provisions of this Section, each Debenture of
a series delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debenture of such series shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debenture.
SECTION 2.04. The Debentures shall, subject to the provisions of
Section 2.06, be printed on steel engraved borders or fully or partially
engraved, or legibly typed, as the proper officers of the Company may
determine, and shall be signed on behalf of the Company by the Chairman or
Vice Chairman of its Board of Directors or its President or one of its Vice
Presidents, under its corporate seal attested by its Secretary or one of its
Assistant Secretaries. The signature of the Chairman, Vice Chairman, President
or a Vice President and/or the signature of the Secretary or an Assistant
Secretary in attestation of the corporate seal, upon the Debentures, may be in
the form of a facsimile signature of a present or any future Chairman, Vice
Chairman, President or Vice President and of a present or any future Secretary
or Assistant Secretary and may be imprinted or otherwise reproduced on the
Debentures and for that purpose the Company may use the facsimile signature of
any person who shall have been a Chairman, Vice Chairman, President or Vice
President, or of any person who shall have been a Secretary or Assistant
Secretary, notwithstanding the fact that at the time the Debentures shall be
authenticated and delivered or disposed of such person shall have ceased to be
the Chairman, Vice Chairman, President or a Vice President, or the Secretary
or an Assistant Secretary, of the Company, as the case may be. The seal of the
Company may be in the form of a facsimile of the seal of the Company and may
be impressed, affixed, imprinted or otherwise reproduced on the Debentures.
Only such Debentures as shall bear thereon a Certificate of
Authentication substantially in the form established for such Debentures,
executed manually by an authorized signatory of the Trustee, or by any
Authenticating Agent with respect to such Debentures, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate executed by the Trustee, or by any Authenticating Agent appointed
by the Trustee with respect to such Debentures, upon any Debenture executed by
the Company shall be conclusive evidence that the Debenture so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debentures of any series executed by
the Company to the Trustee for authentication, together with a written order
of the Company for the authentication and delivery of such Debentures, signed
by its President or any Vice President and its Treasurer or any Assistant
Treasurer, and the Trustee in accordance with such written order shall
authenticate and deliver such Debentures.
In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form
and terms thereof have been established in conformity with the provisions of
this Indenture.
The Trustee shall not be required to authenticate such Debentures if
the issue of such Debentures pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Debentures and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
SECTION 2.05. (a) Debentures of any series may be exchanged upon
presentation thereof at the office or agency of the Company designated for
such purpose in the Borough of Manhattan, the City and State of New York, for
other Debentures of such series of authorized denominations, and for a like
aggregate principal amount, upon payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, all as provided in this
Section. In respect of any Debentures so surrendered for exchange, the Company
shall execute, the Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Debenture or Debentures of the same series
which the Debentureholder making the exchange shall be entitled to receive,
bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company a register
or registers (herein referred to as the "Debenture Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
register the Debentures and the transfers of Debentures as in this Article
provided and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Debentures and transfer
of Debentures as herein provided shall be appointed as authorized by Board
Resolution (the "Debenture Registrar").
Upon surrender for transfer of any Debenture at the office or agency
of the Company designated for such purpose in the Borough of Manhattan, the
City and State of New York, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Debenture or Debentures of the same series as
the Debenture presented for a like aggregate principal amount.
All Debentures presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so required
by the Company or the Debenture Registrar) by a written instrument or
instruments of transfer, in form satisfactory to the Company or the Debenture
Registrar, duly executed by the registered holder or by his duly authorized
attorney in writing.
(c) No service charge shall be made for any exchange or registration
of transfer of Debentures, or issue of new Debentures in case of partial
redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.06, the second paragraph of Section
3.03 and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Debentures during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the outstanding Debentures of the same series and
ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Debentures of any series or portions
thereof called for redemption. The provisions of this Section 2.05 are, with
respect to any Global Debenture, subject to Section 2.11 hereof.
SECTION 2.06. Pending the preparation of definitive Debentures of any
series, the Company may execute, and the Trustee shall authenticate and
deliver, temporary Debentures (printed, lithographed or typewritten) of any
authorized denomination, and substantially in the form of the definitive
Debentures in lieu of which they are issued, but with such omissions,
insertions and variations as may be appropriate for temporary Debentures, all
as may be determined by the Company. Every temporary Debenture of any series
shall be executed by the Company and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Debentures of such series. Without unnecessary delay the
Company will execute and will furnish definitive Debentures of such series and
thereupon any or all temporary Debentures of such series may be surrendered in
exchange therefor (without charge to the holders), at the office or agency of
the Company designated for the purpose in the Borough of Manhattan, the City
and State of New York, and the Trustee shall authenticate and such office or
agency shall deliver in exchange for such temporary Debentures an equal
aggregate principal amount of definitive Debentures of such series, unless the
Company advises the Trustee to the effect that definitive Debentures need not
be executed and furnished until further notice from the Company. Until so
exchanged, the temporary Debentures of such series shall be entitled to the
same benefits under this Indenture as definitive Debentures of such series
authenticated and delivered hereunder.
SECTION 2.07. In case any temporary or definitive Debenture shall
become mutilated or be destroyed, lost or stolen, the Company (subject to the
next succeeding sentence) shall execute, and upon its request the Trustee
(subject as aforesaid) shall authenticate and deliver, a new Debenture of the
same series bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Debenture, or in lieu of and in
substitution for the Debenture so destroyed, lost or stolen. In every case the
applicant for a substituted Debenture shall furnish to the Company and to the
Trustee such security or indemnity as may be required by them to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant's Debenture
and of the ownership thereof. The Trustee may authenticate any such
substituted Debenture and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any
substituted Debenture, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith. In case any Debenture which has matured or is
about to mature shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Debenture, pay or authorize the
payment of the same (without surrender thereof except in the case of a
mutilated Debenture) if the applicant for such payment shall furnish to the
Company and to the Trustee such security or indemnity as they may require to
save them harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft
of such Debenture and of the ownership thereof.
Every Debenture issued pursuant to the provisions of this Section in
substitution for any Debenture which is mutilated, destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether
or not the mutilated, destroyed, lost or stolen Debenture shall be found at
any time, or be enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Debentures of the same series duly issued hereunder. All Debentures shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Debentures, and shall preclude (to the extent lawful) any and
all other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.08. All Debentures surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be canceled by it, and no Debentures
shall be issued in lieu thereof except as expressly required or permitted by
any of the provisions of this Indenture. On request of the Company, the
Trustee shall deliver to the Company canceled Debentures held by the Trustee.
In the absence of such request the Trustee may dispose of canceled Debentures
in accordance with its standard procedures and deliver a certificate of
disposition to the Company. If the Company shall otherwise acquire any of the
Debentures, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Debentures unless and
until the same are delivered to the Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the Debentures, express
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and the holders of the Debentures,
any legal or equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole benefit of the
parties hereto and of the holders of the Debentures.
SECTION 2.10. So long as any of the Debentures of any series remain
outstanding there may be an Authenticating Agent for any or all such series of
Debentures which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Debentures of such series issued upon exchange, transfer or
partial redemption thereof, and Debentures so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Debentures by the Trustee shall be deemed
to include authentication by an Authenticating Agent for such series except for
authentication upon original issuance or pursuant to Section 2.07 hereof.
Each Authenticating Agent shall be acceptable to the Company and shall be a
corporation which has a combined capital and surplus, as most recently
reported or determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to conduct a trust
business, and which is otherwise authorized under such laws to conduct such
business and is subject to supervision or examination by Federal or State
authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. (a) If the Company shall establish pursuant to Section
2.01 that the Debentures of a particular series are to be issued as one or
more Global Debentures, then the Company shall execute and the Trustee shall,
in accordance with Section 2.04, authenticate and deliver, one or more Global
Debentures which (i) shall represent, and shall be denominated in an aggregate
amount equal to the aggregate principal amount of, all of the Outstanding
Debentures of such series, (ii) shall be registered in the name of the
Depository or its nominee, (iii) shall be delivered by the Trustee to the
Depository or pursuant to the Depository's instruction and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided
in Section 2.11 of the Indenture, this Debenture may be transferred, in whole
but not in part, only to another nominee of the Depository or to a successor
Depository or to a nominee of such successor Depository."
(b) Notwithstanding the provisions of Section 2.05, the Global
Debenture of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.05, only to another nominee of the Depository for
such series, or to a successor Depository for such series selected or approved
by the Company or to a nominee of such successor Depository.
(c) If at any time the Depository for a series of Debentures notifies
the Company that it is unwilling or unable to continue as Depository for such
series or if at any time the Depository for such series shall no longer be
registered or in good standing under the Exchange Act, or other applicable
statute or regulation and a successor Depository for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, this Section 2.11
shall no longer be applicable to the Debentures of such series and the Company
will execute, and subject to Section 2.05, the Trustee will authenticate and
deliver Debentures of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Debentures of such series in
exchange for such Global Debenture. In addition, the Company may at any time
determine that the Debentures of any series shall no longer be represented by
one or more Global Debentures and that the provisions of this Section 2.11
shall no longer apply to the Debentures of such series. In such event the
Company will execute and subject to Section 2.05, the Trustee, upon receipt of
an Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver Debentures of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Debentures of
such series in exchange for such Global Debentures. Upon the exchange of the
Global Debentures for such Debentures in definitive registered form without
coupons, in authorized denominations, the Global Debentures shall be canceled
by the Trustee. Such Debentures in definitive registered form issued in
exchange for the Global Debentures pursuant to this Section 2.11(c) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Debentures to the Depository for delivery to the persons in whose names such
Debentures are so registered.
ARTICLE THREE
REDEMPTION OF DEBENTURES AND
SINKING FUND PROVISIONS
SECTION 3.01. The Company may redeem the Debentures of any series
issued hereunder on and after the dates and in accordance with the terms
established for such series pursuant to Section 2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire to exercise such
right to redeem all or, as the case may be, a portion of the Debentures of any
series in accordance with the right reserved so to do, it shall give notice of
such redemption to holders of the Debentures of such series to be redeemed by
mailing, first class postage prepaid, a notice of such redemption not less
than 30 days and not more than 60 days before the date fixed for redemption
of that series to such holders at their last addresses as they shall appear
upon the Debenture Register. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or
not the registered holder receives the notice. In any case, failure duly to
give such notice to the holder of any Debenture of any series designated for
redemption in whole or in part, or any defect in the notice, shall not affect
the validity of the proceedings for the redemption of any other Debentures of
such series or any other series. In the case of any redemption of Debentures
prior to the expiration of any restriction on such redemption provided in the
terms of such Debentures or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance with
any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Debentures of that series are to
be redeemed, and shall state that payment of the redemption price of such
Debentures to be redeemed will be made at the office or agency of the Company
in the Borough of Manhattan, the City and State of New York, upon presentation
and surrender of such Debentures, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after said
date interest will cease to accrue and that the redemption is for a sinking
fund, if such is the case. If less than all the Debentures of a series are to
be redeemed, the notice to the holders of Debentures of that series to be
redeemed in whole or in part shall specify the particular Debentures to be so
redeemed. In case any Debenture is to be redeemed in part only, the notice
which relates to such Debenture shall state the portion of the principal
amount thereof to be redeemed, and shall state that on and after the
redemption date, upon surrender of such Debenture, a new Debenture or
Debentures of such series in principal amount equal to the unredeemed portion
thereof will be issued.
(b) If less than all the Debentures of a series are to be redeemed,
the Company shall give the Trustee at least 45 days' notice in advance of the
date fixed for redemption as to the aggregate principal amount of Debentures
of the series to be redeemed, and thereupon the Trustee shall select, by lot
or in such other manner as it shall deem appropriate and fair in its
discretion and which may provide for the selection of a portion or portions
(equal to $25 or any integral multiple thereof) of the principal amount of
such Debentures of a denomination larger than $25, the Debentures to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Debentures to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its President or any Vice President,
instruct the Trustee or any paying agent to call all or any part of the
Debentures of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may
deem advisable. In any case in which notice of redemption is to be given by
the Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as
the case may be, such Debenture Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or
such paying agent to give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.03. (a) If the giving of notice of redemption shall have
been completed as above provided, the Debentures or portions of Debentures of
the series to be redeemed specified in such notice shall become due and
payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption and interest on such Debentures or portions of Debentures shall
cease to accrue on and after the date fixed for redemption, unless the Company
shall default in the payment of such redemption price and accrued interest
with respect to any such Debenture or portion thereof. On presentation and
surrender of such Debentures on or after the date fixed for redemption at the
place of payment specified in the notice, said Debentures shall be paid and
redeemed at the applicable redemption price for such series, together with
interest accrued thereon to the date fixed for redemption (but if the date
fixed for redemption is an interest payment date, the interest installment
payable on such date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Debenture of such series which is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debenture is presented shall
deliver to the holder thereof, at the expense of the Company, a new Debenture
or Debentures of the same series, of authorized denominations in principal
amount equal to the unredeemed portion of the Debenture so presented.
SECTION 3.04. The provisions or Sections 3.04, 3.05 and 3.06 shall be
applicable to any sinking fund for the retirement of Debentures of a series,
except as otherwise specified as contemplated by section 2.01 for Debentures
of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debentures of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Debentures of any series is herein referred to as
on "optional sinking fund payment". If provided for by the terms of Debentures
for any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 3.05. Each sinking fund payment shall be
applied to the redemption of Debentures of any series as provided for by the
terms of Debentures of such series.
SECTION 3.05. The Company (i) may deliver outstanding Debentures of a
series (other than any previously called for redemption) and (ii) may apply as
a credit Debentures of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Debentures or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Debentures, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Debentures of such series
required to be made pursuant to the terms of such Debentures as provided for
by the terms of such series; provided that such Debentures have not been
previously so credited. Such Debentures shall be received and credited for
such purpose by the Trustee at the redemption price specified in such
Debentures for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking fund
payment date for any series of Debentures, the Company will deliver to the
Trustee an Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms for that series,
the portion thereof, if any, which is to be satisfied by delivering and
crediting Debentures of that series pursuant to Section 3.05 and the basis for
such credit and will, together with such Officers' Certificate, deliver to the
Trustee any Debentures to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Debentures to be
redeemed upon such sinking fund payment date in the manner specified in
Section 3.02 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
3.02. Such notice having been duly given, the redemption of such Debentures
shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE FOUR
Particular Covenants of the Company
The Company covenants and agrees for each series of the Debentures as
follows:
SECTION 4.01. The Company will duly and punctually pay or cause to be
paid the principal of (and premium, if any) and interest on the Debentures of
that series at the time and place and in the manner provided herein and
established with respect to such Debentures.
SECTION 4.02. So long as any series of the Debentures remain
outstanding, the Company agrees to maintain an office or agency in the Borough
of Manhattan, the City and State of New York, with respect to each such series
and at such other location or locations as may be designated as provided in
this Section 4.02, where (i) Debentures of that series may be presented for
payment, (ii) Debentures of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Debentures of that series and
this Indenture may be given or served, such designation to continue with
respect to such office or agency until the Company shall, by written notice
signed by its President or a Vice President and delivered to the Trustee,
designate some other office or agency for such purposes or any of them. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, notices and demands.
SECTION 4.03. (a) If the Company shall appoint one or more paying
agents for all or any series of the Debentures, other than the Trustee, the
Company will cause each such paying agency to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the
Debentures of that series (whether such sums have been paid to it by the
Company or by any other obligor of such Debentures) in trust for the benefit
of the persons entitled thereto:
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor of such Debentures) to make any payment of
the principal of (and premium, if any) or interest on the Debentures of that
series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent; and
(4) that it will perform all other duties of paying agent as set
forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect to
any series of the Debentures, it will on or before each due date of the
principal of (and premium, if any) or interest on Debentures of that series,
set aside, segregate and hold in trust for the benefit of the persons entitled
thereto a sum sufficient to pay such principal (and premium, if any) or
interest so becoming due on Debentures of that series until such sums shall be
paid to such persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of such action, or any failure (by it or any other
obligor on such Debentures) to take such action. Whenever the Company shall
have one or more paying agents for any series of Debentures, it will, prior to
each due date of the principal of (and premium, if any) or interest on any
Debentures of that series, deposit with the paying agent a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the persons entitled to such principal,
premium or interest, and (unless such paying agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary notwithstanding, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or direct any paying agent to pay, to the Trustee all
sums held in trust by the Company or such paying agent, such sums to be held
by the Trustee upon the same terms and conditions as those upon which such
sums were held by the Company or such paying agent; and, upon such payment by
any paying agent to the Trustee, such paying agent shall be released from all
further liability with respect to such money.
SECTION 4.04. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner provided in
Section 7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
ARTICLE FIVE
Debentureholders' Lists and Reports by the Company and the Trustee
SECTION 5.01. The Company will furnish or cause to be furnished to
the Trustee (a) on a monthly basis on each regular record date (as defined in
Section 2.03) a list, in such form as the Trustee may reasonably require, of
the names and addresses of the holders of each series of Debentures as of
such regular record date, provided, that the Company shall not be obligated to
furnish or cause to furnish such list at any time that the list shall not
differ in any respect from the most recent list furnished to the Trustee by
the Company and (b) at such other times as the Trustee may request in writing
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished; provided, however, no such list need be furnished for
any series for which the Trustee shall be the Debenture Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to the names and addresses of
the holders of Debentures contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of holders of
Debentures received by the Trustee in its capacity as Debenture Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Debentures of a series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Debenture for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other holders of Debentures of such series or holders of all
Debentures with respect to their rights under this Indenture or under such
Debentures, and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall within five business days after the receipt of such application, at its
election, either:
(1) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 5.02; or
(2) inform such applicants as to the approximate number of holders of
Debentures of such series or of all Debentures, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this Section
5.02, and as to the approximate cost of mailing to such Debentureholders the
form of proxy or other communication, if any, specified in such application.
(d) If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each holder of such series or of all Debentures, as the
case may be, whose name and address appears in the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section 5.02, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission (the "Commission"), together with a copy of
the material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best interests
of the holders of Debentures of such series or of all Debentures, as the case
may be, or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such Debentureholders
with reasonable promptness after the entry of such order and the renewal of
such tender; otherwise, the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(e) Each and every holder of the Debentures, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any paying agent nor any Debenture Registrar shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the holders of Debentures in accordance with the
provisions of subsection (b) of this Section, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).
SECTION 5.03. (a) The Company covenants and agrees to file with the
Trustee, within 15 days after the Company is required to file the same with
the Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15 (d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then to
file with the Trustee and the Commission in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time
to time by the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to time by such
rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable over-night delivery service which provides for
evidence of receipt, to the Debentureholders, as their names and addresses
appear upon the Debenture Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a) and (b) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
(d) The Company covenants and agrees to furnish to the Trustee, on or
before May 15 in each calendar year in which any of the Debentures are
outstanding, or on or before such other day in each calendar year as the
Company and the Trustee may from time to time agree upon, a Certificate as to
his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this subsection (d), such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 5.04. (a) On or before July 15 in each year in which any of
the Debentures are outstanding, the Trustee shall transmit by mail, first
class postage prepaid, to the Debentureholders, as their names and addresses
appear upon the Debenture Register, a brief report dated as of the preceding
May 15, with respect to any of the following events which may have occurred
within the previous twelve months (but if no such event has occurred within
such period no report need be transmitted):
(1) any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of subsection (c) of Section 7.08;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report, and
for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Debentures, on any property or funds held or collected
by it as Trustee if such advances so remaining unpaid aggregate more than
1/2 of 1% of the principal amount of the Debentures outstanding on the date
of such report;
(4) any change to the amount, interest rate, and maturity date of all
other indebtedness owing by the Company, or by any other obligor on the
Debentures, to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except any indebtedness based upon a creditor relationship
arising in any manner described in paragraph (2), (3), (4), or (6) of
subsection (b) of Section 7.13;
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property subject to
the lien of this Indenture (and the consideration thereof, if any) which it
has not previously reported;
(7) any additional issue of Debentures which the Trustee has not
previously reported; and
(8) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Debentures or the Debentures of any series,
except any action in respect of a default, notice of which has been or is to
be withheld by it in accordance with the provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first class postage prepaid,
to the Debentureholders, as their names and addresses appear upon the
Debenture Register, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee as such since the date of
the last report transmitted pursuant to the provisions of subsection (a) of
this Section (or if no such report has yet been so transmitted, since the date
of execution of this Indenture), for the reimbursement of which it claims or
may claim a lien or charge prior to that of the Debentures of any series on
property or funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this subsection if such advances remaining
unpaid at any time aggregate more than 10% of the principal amount of
Debentures of such series outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Debentures are listed (if so listed)
and also with the Commission. The Company agrees to notify the Trustee when
any Debentures become listed on any stock exchange.
ARTICLE SIX
Remedies of the Trustee and Debentureholders
on Event of Default
SECTION 6.01. (a) Whenever used herein with respect to Debentures of
a particular series, "Event of Default" means any one or more of the following
events which has occurred and is continuing:
(1) default in the payment of any installment of interest upon any of
the Debentures of that series, as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; provided,
however, that a valid extension of an interest payment period by the Company
in accordance with the terms of any indenture supplemental hereto, shall not
constitute a default in the payment of interest for this purpose;
(2) default in the payment of the principal of (or premium, if any,
on) any of the Debentures of that series as and when the same shall become
due and payable whether at maturity, upon redemption, by declaring or
otherwise, or in any payment required by any sinking or analogous fund
established with respect to that series;
(3) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company with
respect to that series contained in such Debentures or otherwise established
with respect to that series of Debentures pursuant to Section 2.01 hereof or
contained in this Indenture (other than a covenant or agreement which has
been expressly included in this Indenture solely for the benefit of one or
more series of Debentures other than such series) for a period of 90 days
after the date on which written notice of such failure, requiring the same
to be remedied and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by the
holders of at least 25% in principal amount of the Debentures of that series
at the time outstanding;
(4) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company as bankrupt or insolvent, or
approving as properly filed a petition seeking liquidation or
reorganization of the Company under the Federal Bankruptcy Code or any other
similar applicable Federal or State law, and such decree or order shall have
continued unvacated and unstayed for a period of 90 days; or an involuntary
case shall be commenced under such Code in respect of the Company and shall
continue undismissed for a period of 90 days or an order for relief in such
case shall have been entered; or a decree or order of a court having
jurisdiction in the premises shall have been entered for the appointment on
the ground of insolvency or bankruptcy of a receiver or custodian or
liquidator or trustee or assignee in bankruptcy or insolvency of the Company
or of its property, or for the winding up or liquidation of its affairs, and
such decree or order shall have remained in force unvacated and unstayed for
a period of 90 days; or
(5) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking
liquidation or reorganization under the Federal Bankruptcy Code or any other
similar applicable Federal or State law, or shall consent to the filing of
any such petition, or shall consent to the appointment on the ground of
insolvency or bankruptcy of a receiver or custodian or liquidator or trustee
or assignee in bankruptcy or insolvency of it or of its property, or shall
make an assignment for the benefit of creditors.
(b) In each and every such case, unless the principal of all the
Debentures of that series shall have already become due and payable, either
the Trustee or the holders of not less than 25% in aggregate principal amount
of the Debentures of that series then outstanding hereunder, by notice in
writing to the Company (and to the Trustee if given by such Debentureholders),
may declare the principal of all the Debentures of that series to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything contained in this Indenture or
in the Debentures of that series or established with respect to that series
pursuant to Section 2.01 hereof to the contrary notwithstanding.
(c) Section 6.01(b), however, is subject to the condition that if,
at any time after the principal of the Debentures of that series shall have
been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Debentures
of that series and the principal of (and premium, if any, on) any and all
Debentures of that series which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to
the extent that such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the Debentures of
that series to the date of such payment or deposit) and the amount payable to
the Trustee under Section 7.06, and any and all defaults under the Indenture,
other than the nonpayment of principal on Debentures of that series which
shall not have become due by their terms, shall have been remedied or waived
as provided in Section 6.06 then and in every such case the holders of a
majority in aggregate principal amount of the Debentures of that series then
outstanding (subject to, in the case of any series of Debentures held as trust
assets of a SunAmerica Capital Trust and with respect to which a Security
Exchange has not theretofore occurred, such consent of the holders of the
Preferred Securities and the Common Securities of such SunAmerica Capital
Trust as may be required under the Declaration of Trust of such SunAmerica
Capital Trust), by written notice to the Company and to the Trustee, may
rescind and annul such declaration and its consequences with respect to that
series of Debentures; but no such rescission and annulment shall extend to or
shall affect any subsequent default, or shall impair any right consequent
thereon.
(d) In case the Trustee shall have proceeded to enforce any right
with respect to Debentures of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
(e) If, prior to a Security Exchange with respect to the Debentures
of any series, a Default with respect to the Debentures of such series shall
have occurred, the Company expressly acknowledges that under the circumstances
set forth in the applicable Declaration of Trust, any holder of Preferred
Securities of the applicable SunAmerica Capital Trust may enforce directly
against the Company the applicable Property Trustee's rights hereunder. In
furtherance of the foregoing and for the avoidance of any doubt, the Company
acknowledges that, under the circumstances described in the applicable
Declaration of Trust, any such holder of Preferred Securities, in its own
name, in the name of the applicable SunAmerica Capital Trust or in the name of
the holders of the Preferred Securities issued by such SunAmerica Capital
Trust, may institute or cause to be instituted a proceeding, including,
without limitation, any suit in equity, an action at law or other judicial or
administrative proceeding, to enforce the applicable Property Trustee's rights
hereunder directly against the Company as issuer of the applicable series of
Debentures, and may prosecute such proceeding to judgment or final decree, and
enforce the same against the Company.
SECTION 6.02. (a) The Company covenants that (1) in case default
shall be made in the payment of any installment of interest on any of the
Debentures of a series, or any payment required by any sinking or analogous
fund established with respect to that series as and when the same shall have
become due and payable, and such default shall have continued for a period of
10 business days, or (2) in case default shall be made in the payment of the
principal of (or premium, if any, on) any of the Debentures of a series when
the same shall have become due and payable, whether upon maturity of the
Debentures of a series or upon redemption or upon declaration or otherwise,
then, upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Debentures of that series, the whole amount that
then shall have become due and payable on all such Debentures for principal
(and premium, if any) or interest, or both, as the case may be, with interest
upon the overdue principal (and premium, if any) and (to the extent that
payment of such interest is enforceable under applicable law and without
duplication of any other amounts paid by the Company or the applicable
SunAmerica Capital Trust in respect thereof) upon overdue installments of
interest at the rate per annum expressed in the Debentures of that series;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, and the amount payable to the Trustee
under Section 7.06.
(b) In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or other obligor
upon the Debentures of that series and collect in the manner provided by law
out of the property of the Company or other obligor upon the Debentures of
that series wherever situated the moneys adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or other
judicial proceedings affecting the Company, any other obligor on such
Debentures, or the creditors or property of either, the Trustee shall have the
power to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law)
be entitled to file such proofs of claim and other papers and documents as may
be necessary or advisable in order to have the claims of the Trustee and of
the holders of Debentures of such series allowed for the entire amount due and
payable by the Company or such other obligor under the Indenture at the date
of institution of such proceedings and for any additional amount which may
become due and payable by the Company or such other obligor after such date,
and to collect and receive any moneys or other property payable or deliverable
on any such claim, and to distribute the same after the deduction of the
amount payable to the Trustee under Section 7.06; and any receiver, assignee
or trustee in bankruptcy or reorganization is hereby authorized by each of the
holders of Debentures of such series to make such payments to the Trustee,
and, in the event that the Trustee shall consent to the making of such
payments directly to such Debentureholders, to pay to the Trustee any amount
due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Debentures of
that series, may be enforced by the Trustee without the possession of any of
such Debentures, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for payment to the Trustee of any
amounts due under Section 7.06, be for the ratable benefit of the holders of
the Debentures of such series.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Debentureholder
any plan of reorganization, arrangement, adjustment or composition affecting
the Debentures of that series or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any Debentureholder
in any such proceeding.
SECTION 6.03. Any moneys collected by the Trustee pursuant to Section
6.02 with respect to a particular series of Debentures shall be applied in the
order following, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the several Debentures of that series, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06; and
SECOND: To the payment of the amounts then due and unpaid upon
Debentures of such series for principal (and premium, if any) and interest,
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Debentures for principal (and premium,
if any) and interest, respectively.
SECTION 6.04. No holder of any Debenture of any series shall have any
right by virtue or by availing of any provision of this Indenture to institute
any suit, action or proceeding in equity or at law upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless such holder previously shall have given
to the Trustee written notice of an Event of Default and of the continuance
thereof with respect to Debentures of such series specifying such Event of
Default, as hereinbefore provided, and unless also the holders of not less
than 25% in aggregate principal amount of the Debentures of such series then
outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or proceeding;
it being understood and intended, and being expressly covenanted by the taker
and holder of every Debenture of such series with every other such taker and
holder and Trustee, that no one or more holders of Debentures of such series
shall have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Debentures, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Debentures of such series. For
the protection and enforcement of the provisions of this Section, each and
every Debentureholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
Notwithstanding any other provisions of this Indenture, however, the
right of any holder of any Debenture to receive payment of the principal of
(and premium, if any) and interest on such Debenture, as therein provided, on
or after the respective due dates expressed in such Debenture (or in the case
of redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates or
redemption date, shall not be impaired or affected without the consent of such
holder.
SECTION 6.05. (a) All powers and remedies given by this Article to
the Trustee or to the Debentureholders shall, to the extent permitted by law,
be deemed cumulative and not exclusive of any others thereof or of any other
powers and remedies available to the Trustee or the holders of the debentures,
by judicial proceedings or otherwise, to enforce performance or observance of
the covenants and agreements contained in this Indenture or otherwise
established with respect to such Debentures.
(b) No delay or omission of the Trustee or of any holder of any of
the Debentures to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee or to the
Debentureholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Debentureholders.
SECTION 6.06. The holders of a majority in aggregate principal amount
of the Debentures of any series at the time outstanding, determined in
accordance with Section 8.04 (with, in the case of any series of Debentures
held as trust assets of a SunAmerica Capital Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of holders of the
Preferred Securities and the Common Securities of such SunAmerica Capital Trust
as may be required under the Declaration of Trust of such SunAmerica Capital
Trust), shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
series; provided, however, that such direction shall not be in conflict with
any rule of law or with this Indenture or unduly prejudicial to the rights of
holders of Debentures of any other series at the time outstanding determined
in accordance with Section 8.04 not parties thereto. Subject to the
provisions of Section 7.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee in good faith shall, by a Responsible
Officer or Officers of the Trustee, determine that the proceeding so directed
would involve the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Debentures of any series at the time
outstanding affected thereby, determined in accordance with section 8.04 (with,
in the case of any series of Debentures held as trust assets of a SunAmerica
Capital Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of holders of the Preferred Securities and
the Common Securities of such SunAmerica Capital Trust as may be required
under the Declaration of Trust of such SunAmerica Capital Trust), may on behalf
of the holders of all of the Debentures of such series waive any past default
in the performance of any of the covenants contained herein or established
pursuant to section 2.01 with respect to such series and its consequences,
except a default in the payment of the principal of, or premium, if any, or
interest on, any of the Debentures of that series as and when the same shall
become due by the terms of such Debentures otherwise than by acceleration
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal and any premium has been deposited with
the Trustee (in accordance with Section 6.01(c)) or a call for redemption of
Debentures of that series. Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Debentures of such series shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the occurrence
of a default with respect to a particular series, transmit by mail, first
class postage prepaid, to the holders of Debentures of that series, as their
names and addresses appear upon the Debenture Register, notice of all defaults
with respect to that series known to the Trustee, unless such defaults shall
have been cured before the giving of such notice (the term "defaults" for the
purposes of this Section being hereby defined to be the events specified in
subsections (1), (2), (3), (4) and (5) of Section 6.01(a), not including any
periods of grace provided for therein and irrespective of the giving of notice
provided for by subsection (3) of Section 6.01(a)); provided, that, except in
the case of default in the payment of the principal of (or premium, if any) or
interest on any of the Debentures of that series or in the payment of any
sinking fund installment established with respect to that series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors and/or
Responsible Officers, of the Trustee in good faith determine that the
withholding of such notice is in the interests of the holders of Debentures of
that series; provided further, that in the case of any default of the
character specified in Section 6.01(a)(3) with respect to Debentures of such
series no such notice to the holders of the Debentures of that series shall be
given until at least 30 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any default,
except (i) a default under subsection (a)(1) or (a)(2) of Section 6.01 as long
as the Trustee is acting as paying agent for such series of Debentures or (ii)
any default as to which the Trustee shall have received written notice or a
Responsible Officer charged with the administration of this Indenture shall
have obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and each holder of
any Debentures by his or her acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Debentureholder, or group of Debentureholders, holding more than 10% in
aggregate principal amount of the outstanding Debentures of any series, or to
any suit instituted by any Debentureholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Debenture of such
series, on or after the respective due dates expressed in such Debenture or
established pursuant to this Indenture.
ARTICLE SEVEN
Concerning the Trustee
SECTION 7.01. (a) The Trustee, prior to the occurrence of an Event
of Default with respect to Debentures of a series and after the curing of all
Events of Default with respect to Debentures of that series which may have
occurred, shall undertake to perform with respect to Debentures of such series
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture against
the Trustee. In case an Event of Default with respect to Debentures of a
series has occurred (which has not been cured or waived), the Trustee shall
exercise with respect to Debentures of that series such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to
Debentures of a series and after the curing or waiving of all such Events of
Default with respect to that series which may have occurred:
(i) the duties and obligations of the Trustee shall with
respect to Debentures of such series be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable with respect to Debentures of such series except for the
performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may with respect to Debentures of such series conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the holders of not less than a majority in principal amount of the
Debentures of any series at the time outstanding relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee under
this Indenture with respect to the Debentures of that series; and
(4) none of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security or other paper or document believed by it to the genuine and
to have been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by the President or any Vice
President and by the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer (unless other evidence in respect thereof is
specifically prescribed herein);
(c) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Debentureholders, pursuant to the provisions of this
Indenture, unless such Debentureholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing herein contained shall,
however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default with respect to a series of the Debentures (which has not
been cured or waived) to exercise with respect to Debentures of that series
such of the rights and powers vested in it by this Indenture, and to use the
same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or omitted
to be taken by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security, or other papers or documents, unless requested in writing so
to do by the holders of not less than a majority in principal amount of the
outstanding Debentures of the particular series affected thereby (determined
as provided in Section 8.04); provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as
a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 7.03. (a) The recitals contained herein and in the
Debentures (other than the Certificate of Authentication on the Debentures)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or application
by the Company of any of the Debentures or of the proceeds of such Debentures,
or for the use or application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture or established pursuant to
Section 2.01, or for the use or application of any moneys received by any
paying agent other than the Trustee.
SECTION 7.04. The Trustee or any paying agent or Debenture Registrar,
in its individual or any other capacity, may become the owner or pledgee of
Debentures with the same rights it would have if it were not Trustee, paying
agent or Debenture Registrar.
SECTION 7.05. Subject to the provisions of Section 11.05, all moneys
received by the Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it
hereunder except such as it may agree with the Company to pay thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, reasonable
compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) for all services rendered
by it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part of
the Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Debentures upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
Debentures.
SECTION 7.07. Except as otherwise provided in Section 7.01, whenever
in the administration of the provisions of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee and such certificate, in the absence of negligence or
bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under the provisions
of this Indenture upon the faith thereof.
SECTION 7.08. (a) If the Trustee has or shall acquire any
conflicting interest, as defined in this Section, with respect to the
Debentures of any series and if the Default to which such conflicting interest
relates has not been cured, duly waived or otherwise eliminated, within 90
days after ascertaining that it has such conflicting interest, it shall either
eliminate such conflicting interest, except as otherwise provided herein, or
resign with respect to the Debentures of that series in the manner and with
the effect specified in Section 7.10 and the Company shall promptly appoint a
successor Trustee in the manner provided herein.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section, with respect to the Debentures
of any series the Trustee shall, within ten days after the expiration of such
90-day period, transmit notice of such failure by mail, first class postage
prepaid, to the Debentureholders of that series as their names and addresses
appear upon the registration books.
(c) For the purposes of this Section the Trustee shall be deemed to
have a conflicting interest with respect to the Debentures of any series if a
Default has occurred and is continuing and:
(1) the Trustee is trustee under this Indenture with respect to the
outstanding Debentures of any series other than that series, or is trustee
under another indenture under which any other securities, or certificates of
interest or participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust indenture
under which the only collateral consists of Debentures issued under this
Indenture; provided that there shall be excluded from the operation of this
paragraph the Debentures of any series other than that series and any other
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are
outstanding if (i) this Indenture and such other indenture or indentures and
all series of securities issuable thereunder are wholly unsecured and rank
equally and such other indenture or indentures (and such series) are
hereafter qualified under the Trust Indenture Act, unless the Commission
shall have found and declared by order pursuant to subsection (b) of Section
305 or subsection (c) of Section 307 of the Trust Indenture Act, that
differences exist between (A) the provisions of this Indenture with respect
to Debentures of that series and with respect to one or more other series or
(B) the provisions of this Indenture and the provisions of such other
indenture or indentures (or such series), which are so likely to involve a
material conflict of interest as to make it necessary in the public interest
or for the protection of investors to disqualify the Trustee from acting as
such under this Indenture with respect to the Debentures of that series and
such other series or such other indenture or indentures, or (ii) the Company
shall have sustained the burden of proving, on application to the Commission
and after opportunity for hearing thereon, that the trusteeship under this
Indenture with respect to Debentures of that series and such other series or
such other indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or for
the protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to Debentures of that series and such
other series or under such other indentures;
(2) the Trustee or any of its directors or executive officers is an
underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (A) one individual may be a director and/or an executive officer of the
Trustee and a director and/or an executive officer of the Company, but may
not be at the same time an executive officer of both the Trustee and the
Company; (B) if and so long as the number of directors of the Trustee in
office is more than nine, one additional individual may be a director and/or
an executive officer of the Trustee and a director of the Company; and (C)
the Trustee may be designated by the Company or by an underwriter for the
Company to act in the capacity of transfer agent, registrar, custodian,
paying agent, fiscal agent, escrow agent, or depository, or in any other
similar capacity, or, subject to the provisions of paragraph (1) of this
subsection (c), to act as trustee whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner, or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or 10%
or more of the voting securities of the Trustee is beneficially owned either
by an underwriter for the Company or by any director, partner, or executive
officer thereof, or is beneficially owned, collectively by any two or more
such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
subsection (c) defined), (A) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company, not including the
Debentures issued under this Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or (B) 10% or more of any
class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
subsection (c) defined), 5% or more of the voting securities of any person
who, to the knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is under direct or
indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
subsection (c) defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company;
(9) the Trustee owns, on the date of Default upon the Debentures of
any series or any anniversary of such Default while such Default upon the
Debentures issued under this Indenture remains outstanding, in the capacity
of executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of
25% or more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which would
have constituted a conflict interest under paragraph (6), (7), or (8) of
this subsection (c). As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator or testamentary
trustee of an estate which includes them, the provisions of the preceding
sentence shall not apply, for a period of two years from the date of such
acquisition, to the extent that such securities in such estate do not exceed
25% of such voting securities or 25% of any such class of security.
Promptly after the dates of any such Default upon the Debentures issued
under this Indenture and annually in each succeeding year that the
Debentures issued under this Indenture remain in Default, the Trustee shall
make a check of its holding of such securities in any of the above-mentioned
capacities as of such dates. If the Company fails to make payment in full
of principal of or interest on any of the Debentures when and as the same
becomes due and payable, and such failure continues for 30 days thereafter,
the Trustee shall make a prompt check of its holding of such securities in
any of the above-mentioned capacities as of the date of the expiration of
such 30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph (9), all such securities so held by the
Trustee, with sole or joint control over such securities vested in it,
shall, but only so long as such failure shall continue, be considered as
though beneficially owned by the Trustee for the purposes of paragraphs (6),
(7) and (8) of this subsection (c); or
(10) except under the circumstances described in paragraph (1), (3),
(4), (5) or (6) of subsection (b) of Section 7.13 the Trustee shall be or
shall become a creditor of the Company.
For purposes of paragraph (1) of this subsection (c), and of Section
6.06, the term "series of securities" or "securities" means a series, class or
group of securities issuable under an indenture pursuant to whose terms
holders of one such series may vote to direct the indenture trustee, or
otherwise take action pursuant to a vote of such holders, separately from
holders of another such series; provided, that, "series of securities" or
"series" shall not include any series of securities issuable under an
indenture if all such series rank equally and are wholly secured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this subsection (c) shall not be construed as indicating that the ownership
of such percentages of securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (c) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed
to be in "default", when a default in payment of principal shall have
continued for 30 days or more and shall not have been cured; and (C) the
Trustee shall not be deemed to be the owner or holder of (i) any security
which it holds as collateral security (as trustee or otherwise) for any
obligation which is not in default as defined in clause (B) above, or (ii) any
security which it holds as collateral security under this Indenture,
irrespective of any Default hereunder, or (iii) any security which it holds as
agent for collection, or as custodian, escrow agent or depositary, or in any
similar representative capacity.
Except as above provided, the word "security" or securities" as used
in this Indenture shall mean any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateral trust certificate, pre-organization
certificate or subscription, transferable share, investment contract, voting
trust certificate, certificate of deposit for a security, fractional undivided
interest in oil, gas, or other mineral rights, or, in general, any interest or
instrument commonly known as a "security", or any certificate of interest or
participation in, temporary or interim certificate for, receipt for, guarantee
of, or warrant or right to subscribe to or purchase, any of the foregoing.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the Company
shall mean every person, who, within one year prior to the time as of which
the determination is made, has purchased from the Company with a view to, or
has offered or sold for the Company in connection with, the distribution of
any security of the Company, or has participated or has had a direct or
indirect participation in any such undertaking, or has participated or has
had a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest was
limited to a commission from an underwriter or dealer not in excess of the
usual and customary distributors' or sellers' commission.
(2) The term "director" shall mean any member of the board of
directors of a corporation or any individual performing similar functions
with respect to any organization whether incorporated or unincorporated.
(3) The term "person" shall mean an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" shall mean any security presently
entitling the owner or holder thereof to vote in the direction or management
of the affairs of a person, or any security issued under or pursuant to any
trust, agreement or arrangement whereby a trustee or trustees or agent or
agents for the owner or holder of such security are presently entitled to
vote in the direction or management of the affairs of a person.
(5) The term "Company" shall mean any obligor upon the Debentures.
(6) The term "executive officer" shall mean the chairman of the board
of directors, president, every vice president, every assistant vice
president, every trust officer, the cashier, the secretary, and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom is
referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares and the number of units if relating to
any other kind of security.
(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof, provided, however, that any voting securities of an issuer
shall be deemed outstanding if any person other than the issuer is
entitled to exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued under
a single indenture, differences in the interest rates or maturity dates of
various series thereof shall not be deemed sufficient to constitute such
series different classes; and provided, further, that, in the case of
unsecured evidences of indebtedness, differences in the interest rates or
maturity dates thereof shall not be deemed sufficient to constitute them
securities of different classes, whether or not they are issued under a
single indenture.
(f) Except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Debentures issued under this
Indenture, or in the payment of any sinking or analogous fund installment, the
Trustee shall not be required to resign as provided by this Section 7.08 if
such Trustee shall have sustained the burden of proving, on application to the
Commission and after opportunity for hearing thereon, that (i) the default
under the Indenture may be cured or waived during a reasonable period and
under the procedures described in such application and (ii) a stay of the
Trustee's duty to resign will not be inconsistent with the interests of
Debentureholders. The filing of such an application shall automatically stay
the performance of the duty to resign until the Commission orders otherwise.
Any resignation of the Trustee shall become effective only upon the
appointment of a successor trustee and such successor's acceptance of such an
appointment.
SECTION 7.09. There shall at all times be a Trustee with respect to
the Debentures issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any State or Territory thereof or of the District of Columbia, or a
corporation or other person permitted to act as trustee by the Commission,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million dollars, and subject to
supervision or examination by Federal, State, Territorial, or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any person directly or
indirectly controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter appointed,
may at any time resign with respect to the Debentures of one or more series by
giving written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Debentureholders of
such series, as their names and addresses appear upon the Debenture Register.
Upon receiving such notice of resignation, the Company shall promptly appoint a
successor trustee with respect to Debentures of such series by written
instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee with respect
to Debentures of such series, or any Debentureholder of that series who has
been a bona fide holder of a Debenture or Debentures for at least six months
may, subject to the provisions of Section 6.08, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, appointment a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.08 after written request therefor by the Company
or by any Debentureholder who has been a bona fide holder of a Debenture or
Debentures for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Debentureholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, the
Company may remove the Trustee with respect to all Debentures and appoint a
successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to
the provisions of Section 6.08, unless the Trustee's duty to resign is
stated as provided herein, any Debentureholder who has been a bona fide
holder of a Debenture or Debentures for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment
of a successor trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Debentures of any series at the time outstanding may at any time remove the
Trustee with respect to such series and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Debentures of a series pursuant to any
of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Debentures of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the
Debentures of any particular series.
SECTION 7.11. (a) In case of the appointment hereunder of a
successor trustee with respect to all Debentures, every such successor trustee
so appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Debentures of one or more (but not all) series, the Company,
the retiring Trustee and each successor trustee with respect to the Debentures
of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debentures of that or those series to which the appointment of such successor
trustee relates, (2) shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Debentures of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust, that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee and that no Trustee
shall be responsible for any act or failure to act on the part of any other
Trustee hereunder; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with
respect to the Debentures of that or those series to which the appointment of
such successor trustee relates have no further responsibility for the exercise
of rights and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture, and each such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debentures of that or those series to which the appointment of such successor
trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental indenture, the
property and money held by such retiring Trustee hereunder with respect to the
Debentures of that or those series to which the appointment of such successor
trustee relates.
(c) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, power and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and eligible
under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the Debenture
Register. If the Company fails to transmit such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be transmitted at the expense of the Company.
SECTION 7.12. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of Section 7.09, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Debentures shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Debentures so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Debentures.
SECTION 7.13. (a) Subject to the provisions of subsection (b) of
this Section, if the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company within three months prior to
a default, as defined in subsection (b) of this Section, or subsequent to such
a default, then, unless and until such default shall be cured, the Trustee
shall set apart and hold in a special account for the benefit of the Trustee
individually, the holders of the Debentures and the holders of other indenture
securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three months'
period, or an amount equal to the proceeds of any such property, if disposed
of, subject, however, to the rights, if any, of the Company and its other
creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any person (other than the Company) who is liable thereon, and
(ii) the proceeds of the bona fide sale of any such claim by the Trustee to
a third person, and (iii) distributions made in cash, securities, or other
property in respect of claims filed against the Company in bankruptcy or
receivership or in a case for reorganization pursuant to the Federal
Bankruptcy Code or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such three
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
subsection (c) of this Section, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in such paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Debentureholders and the holders of other indenture
securities in such manner that the Trustee, the Debentureholders and the
holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in a case for reorganization pursuant
to the Federal Bankruptcy Code or applicable State law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee, the Debentureholders and the holders of other indenture
securities dividends on claims filed against the Company in bankruptcy or
receivership or in a case for reorganization pursuant to the Federal
Bankruptcy Code or applicable State law, but after crediting thereon receipts
on account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect to any
claim, the term "dividends" shall include any distribution with respect to
such claim, in bankruptcy or receivership or in a case for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law, whether such
distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or a case for
reorganization is pending shall have jurisdiction (i) to apportion between the
Trustee, the Debentureholders and the holders of other indenture securities,
in accordance with the provisions of this paragraph, the funds and property
held in such special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions
to be made to the Trustee, the Debentureholders and the holders of other
indenture securities with respect to their respective claims, in which event
it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for
any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to
apply the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this
subsection (a) as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three
months' period, it shall be subject to the provisions of this subsection (a)
if and only if the following conditions exist:
(i) the receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
trustee, occurred after the beginning of such three months' period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property other than cash which shall at any time be subject to the lien,
if any, of this Indenture or of discharging tax liens or other prior liens
or encumbrances thereon, if notice of such advance and of the circumstances
surrounding the making thereof is given to the Debentureholders at the time
and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, subscription agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a Company
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptance or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c) of
this Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make payment in full
of the principal of (or premium, if any) or interest upon any of the
Debenture or upon the other indenture securities when and as such principal
(or premium, if any) or interest becomes due and payable.
(2) The term "other indenture securities" shall mean securities upon
which the Company is an obligor (as defined in the Trust Indenture Act)
outstanding under any other indenture (A) under which the Trustee is also
trustee, (B) which contains provisions substantially similar to the
provisions of subsection (a) of this Section, and (C) under which a default
exists at the time of the apportionment of the funds and property held in
said special account.
(3) The term "cash transaction" shall mean any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other orders
drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon , the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation.
(5) The term "Company" shall mean any obligor upon any of the
Debentures.
ARTICLE EIGHT
Concerning the Debentureholders
SECTION 8.01. Whenever in this Indenture it is provided that the
holders of a majority or specified percentage in aggregate principal amount of
the Debentures of a particular series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action) the fact that at the time of taking any
such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such holders of Debentures of that
series in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Debentureholders of any series
any request, demand, authorization, direction, notice, consent, waiver or
other action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the
determination of Debentureholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Debentureholders of record at the close of business on the record date shall be
deemed to be Debentureholders for the purposes of determining whether
Debentureholders of the requisite proportion of outstanding Debentures of that
series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for
that purpose the outstanding Debentures of that series shall be computed as of
the record date; provided that no such authorization, agreement or consent by
such Debentureholders on the record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
SECTION 8.02. Subject to the provisions of Section 7.01, proof of the
execution of any instrument by a Debentureholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any person of
any of the Debentures shall be sufficient if made in the following manner;
(a) The fact and date of the execution by any such person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Debentures shall be proved by the Debenture
Register of such Debentures or by a certificate of the Debenture Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration of
transfer of any Debenture, the Company, the Trustee, any paying agent and any
Debenture Registrar may deem and treat the person in whose name such Debenture
shall be registered upon the books of the Company as the absolute owner of
such Debenture (whether or not such Debenture shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone other
than the Debenture Registrar) for the purpose of receiving payment of or on
account of the principal of, premium, if any, and (subject to Section 2.03)
interest on such Debenture and for all other purposes; and neither the Company
nor the Trustee nor any paying agent nor any Debenture Registrar shall be
affected by any notice to the contrary.
SECTION 8.04. In determining whether the holders of the requisite
aggregate principal amount of Debentures of a particular series have concurred
in any direction, consent or waiver under this Indenture, Debentures of that
series which are owned by the Company or any other obligor on the Debentures
of that series or by any Subsidiary of the Company or of such other obligor on
the Debentures of that series shall be disregarded and deemed not to be
outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Debentures of such series which
the Trustee actually knows are so owned shall be so disregarded. Debentures
so owned which have been pledged in good faith may be regarded as outstanding
for the purposes of this Section, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Debentures and that the pledgee is not a person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any such other obligor. In case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.01, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount of the
Debentures of a particular series specified in this Indenture in connection
with such action, any holder of a Debenture of that series which is shown by
the evidence to be included in the Debentures the holders of which have
consented to such action may, by filing written notice with the Trustee, and
upon proof of holding as provided in Section 8.02, revoke such action so far
as concerns such Debenture. Except as aforesaid any such action taken by the
holder of any Debenture shall be conclusive and binding upon such holder and
upon all future holders and owners of such Debenture, and of any Debenture
issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debenture. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Debentures of a particular
series specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders of all the
Debentures of that series.
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect), without the consent
of the Debentureholders, for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company,
and the assumption by any such successor of the covenants of the Company
contained herein or otherwise established with respect to the Debentures; or
(b) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the holders of
the Debentures of all or any series as the Board of Directors and the
Trustee shall consider to be for the protection of the holders of Debentures
of all or any series, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants, restrictions,
conditions or provisions a default or an Event of Default with respect to
such series permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default or may limit the right of the holders of a majority in aggregate
principal amount of the Debentures of such series to waive such default; or
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture as shall not be
inconsistent with the provisions of this Indenture and shall not adversely
affect the interests of the holders of the Debentures of any series; or
(d) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Debenture outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations which may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Debentures at the time outstanding, notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in Section
8.01) of the holders of not less than a majority in aggregate principal amount
of the Debentures of each series affected by such supplemental indenture or
indentures at the time outstanding (and, in the case of any series of
Debentures held as trust assets of a SunAmerica Capital Trust and with respect
to which a Security Exchange has not theretofore occurred, such consent of
holders of the Preferred Securities and the Common Securities of such
SunAmerica Capital Trust as may be required under the Declaration of Trust of
such SunAmerica Capital Trust), the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect) for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the holders of the Debentures of such series under
this Indenture; provided, however, that no such supplemental indenture shall
(i) extend the fixed maturity of any Debentures of any series, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium payable upon the redemption thereof,
without the consent of the holder of each Debenture so affected or (ii) reduce
the aforesaid percentage of Debentures, the holders of which are required to
consent to any such supplemental indenture, without the consent of the holders
of each Debenture (and, in the case of any series of Debentures held as trust
assets of a SunAmerica Capital Trust and with respect to which a Security
Exchange has not theretofore occurred, such consent of the holders of the
Preferred Securities and the Common Securities of such SunAmerica Capital
Trust as may be required under the Declaration of Trust of such SunAmerica
Capital Trust) then outstanding and affected thereby.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Debentureholders (and,
in the case of any series of Debentures held as trust assets of a SunAmerica
Capital Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of holders of the Preferred Securities and
the Common Securities of such SunAmerica Capital Trust as may be required
under the Declaration of Trust of such SunAmerica Capital Trust) required to
consent thereto as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture.
It shall not be necessary for the consent of the Debentureholders of
any series affected thereby under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth
in general terms the substance of such supplemental indenture, to the
Debentureholders of all series affected thereby as their names and addresses
appear upon the Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this Indenture
shall, with respect to such series, be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Debentures of the series affected
thereby shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture shall be and be deemed
to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.04. Debentures of any series, affected by a supplemental
indenture, authenticated and delivered after the execution of such
supplemental indenture pursuant to the provisions of this Article or of
Section 10.01, may bear a notation in form approved by the Company, provided
such form meets the requirements of any exchange upon which such series may be
listed, as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Debentures of that series so modified as to
conform, in the opinion of the Board of Directors, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Debentures of that series then outstanding.
SECTION 9.05. The Trustee, subject to the provisions of Section 7.01,
may receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by, and
conforms to, the terms of this Article and that it is proper for the Trustee
under the provisions of this Article to join in the execution thereof.
ARTICLE TEN
Consolidation, Merger, Sale or Conveyance
SECTION 10.01. The Company shall not consolidate with or merge into
any other Person or transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any other
Person to consolidate with or merge into the Company, unless:
(a) either the Company shall be the continuing corporation, or the
corporation (if other than the Company) formed by such consolidation or into
which the Company is merged or to which the properties and assets of the
Company substantially as an entity are transferred or leased shall be a
corporation organized and existing under the laws of the United States of
America or any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of the
Company under the Debentures and this Indenture; and
(b) immediately after giving effect to such transaction no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing.
SECTION 10.02 The successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer or
lease is made shall succeed to and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as
if such successor corporation had been named as the Company herein, and
thereafter (except in the case of a lease to another Person) the predecessor
corporation shall be relieved of all obligations and covenants under the
Indenture and the Debentures and, in the event of such conveyance or transfer,
any such predecessor corporation may be dissolved and liquidated.
SECTION 10.03. The Trustee, subject to the provisions of Section
7.01, may receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or other disposition, and
any such assumption, comply with the provisions of this Article.
ARTICLE ELEVEN
Satisfaction and Discharge of Indenture;
Unclaimed Moneys
SECTION 11.01. (A) If at any time (a) the Company shall have paid
or caused to be paid the principal of and interest on all the Debentures of
any series Outstanding hereunder (other than Debentures of such series which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.07) as and when the same shall have become due and
payable, or (b) the Company shall have delivered to the Trustee for
cancellation all Debentures of any series theretofore authenticated (other
than any Debentures of such series which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.07)
or (c) (i) all the Debentures of series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (ii) the Company shall have
irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount in cash (other than moneys repaid by the Trustee or
any paying agent to the Company in accordance with Section 11.04) or
Government Obligations, maturing as to principal and interest at such times
and in such amounts as will insure the availability of cash, or a combination
thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest on all
Debentures of such series on each date that such principal or interest is due
and payable and (B) any mandatory sinking fund payments on the dates on which
such payments are due and payable in accordance with the terms of the
Indenture and the Debentures of such series; and if, in any such case, the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then this Indenture shall cease to be of further effect (except
as to (i) rights of registration of transfer and exchange of Debentures of
such series and the Company's right of optional redemption, if any, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Debentures,
(iii) rights of holders of Debentures to receive payments of principal thereof
and interest thereon, upon the original stated due dates therefor (but not
upon acceleration), and remaining rights of the Debentureholders to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations, duties
and immunities of the Trustee hereunder, (v) the rights of the holders of
Debentures of such series as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them, and (vi) the
obligations of the Company under Section 4.02) and the Trustee, on demand of
the Company accompanied by an Officers' Certificate and an Opinion of Counsel
and at the cost and expense of the Company, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture; provided,
that the rights of Holders of the Debentures to receive amounts in respect of
principal of and interest on the Debentures held by them shall not be delayed
longer than required by then-applicable mandatory rules or policies of any
securities exchange upon which the Debentures are listed. The Company agrees
to reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Debentures of such series.
(B) The following provisions shall apply to the Debentures of each
series unless specifically otherwise provided in a Board Resolution or
indenture supplemental hereto provided pursuant to Section 2.01. In addition
to discharge of the Indenture pursuant to the next preceding paragraph, the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Debentures of a series on the date of the deposit referred to in
subparagraph (a) below, and the provisions of this Indenture with respect to
the Debentures of such series shall no longer be in effect (except as to (i)
rights of registration of transfer and exchange of Debentures of such series
and the Company's right of optional redemption, if any, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Debentures, (iii) rights of
holders of Debentures to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the holders of Debentures to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations, duties
and immunities of the Trustee hereunder, (v) the rights of the Holders of
Debentures as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them and (vi) the obligations of the
Company under Section 4.02) and the Trustee, at the expense of the Company,
shall at the Company's request, execute proper instruments acknowledging the
same, if
(a) with reference to this provision the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust
funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the holders of the Debentures of such series (i) cash in
an amount, or (ii) Governmental Obligations maturing as to principal and
interest at such times and in such amounts as will insure the availability
of cash or (iii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A) the
principal and interest on all Debentures of such series on each date that
such principal or interest is due and payable and (B) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Debentures of such series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the Company
is a party or by which it is bound;
(c) the Company has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable Federal income tax law, in
either case to the effect that, and such opinion shall confirm that, the
holders of the Debentures of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on the same amount
and in the same manner and at the same times, as would have been the case if
such deposit, defeasance and discharge had not occurred;
(d) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by this provision have
been complied with; and
(e) no event or condition shall exist that, pursuant to the
provisions of Section 14.02 or 14.03, would prevent the Company from making
payments of the principal of or interest on the Debentures of such series on
the date of such deposit.
SECTION 11.02 Subject to Section 11.04, all moneys deposited with the
Trustee (or other trustee) pursuant to Section 11.01 shall be held in trust
and applied by it to the payment, either directly or through any paying agent
(including the Company acting as its own paying agent), to the Holders of the
particular Debentures of such series for the payment or redemption of which
such moneys have been deposited with the Trustee, of all sums due and to
become due thereon for principal and interest; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 11.03 In connection with the satisfaction and discharge of
this Indenture with respect to Debentures of any series, all moneys then held
by any paying agent under the provisions of this Indenture with respect to
such series of Debentures shall, upon demand of the Company, be repaid to it
or paid to the Trustee and thereupon such paying agent shall be released from
all further liability with respect to such moneys.
SECTION 11.04 Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest on any Security
of any series and not applied but remaining unclaimed for two years after the
date upon which such principal or interest shall have become due and payable,
shall, upon the written request of the Company and unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Company by the Trustee for such series or such
paying agent, and the Holder of the Debentures of such series shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property laws, thereafter look only to the Company for any
payment which such holder may be entitled to collect, and all liability of the
Trustee or any paying agent with respect to such moneys shall thereupon cease;
provided, however, that the Trustee or such paying agent, before being
required to make any such repayment with respect to moneys deposited with it
for any payment series, shall at the expense of the Company, mail by
first-class mail to holders of such Debentures at their addresses as they
shall appear on the Debenture Register, notice, that such moneys remain and
that, after a date specified therein, which shall not be less than thirty days
from the date of such mailing or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 11.05 The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the Governmental
Obligations deposited pursuant to Section 11.01 or the principal or interest
received in respect of such obligations.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders, Officers
and Directors
SECTION 12.01. No recourse under or upon any obligations, covenant or
agreement of this Indenture, or of any Debenture, or for any claim based
thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as
such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statue or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this Indenture
and the issuance of such Debentures.
ARTICLE THIRTEEN
Miscellaneous Provisions
SECTION 13.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 13.02. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with
like force and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful sole successor of the Company.
SECTION 13.03. The Company by instrument in writing executed by
authority of two-thirds of its Board of Directors and delivered to the Trustee
may surrender any of the powers reserved to the Company and thereupon such
power so surrendered shall terminate both as to the Company and as to any
successor corporation.
SECTION 13.04. Except as otherwise expressly provided herein any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Debentures
to or on the Company may be given or served by being deposited first class
postage prepaid in a post-office letterbox addressed (until another address
is filed in writing by the Company with the Trustee), as follows: SunAmerica
Inc., 1 SunAmerica Center, Los Angeles, California 90067-6022, Attention:
Secretary. Any notice, election, request or demand by the Company or any
Debentureholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at
the Corporate Trust Office of the Trustee.
SECTION 13.05. This Indenture and each Debenture shall be deemed to
be a contract made under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 13.06. (a) Upon any application or demand by the Company to
the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand as to which
the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture (other than the certificate provided pursuant to
Section 5.03(d) of this Indenture) shall include (1) a statement that the
person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and (4) a statement as to whether or not,
in the opinion of such person, such condition or covenant has been complied
with.
SECTION 13.07. Except as provided pursuant to Section 2.01 pursuant
to a Board Resolution, and as set forth in an Officers' Certificate, or
established in one or more indentures supplemental to the Indenture, in any
case where the date of maturity of interest or principal of any Debenture or
the date of redemption of any Debenture shall not be a business day then
payment of interest or principal (and premium, if any) may be made on the next
succeeding business day with the same force and effect as if made on the
nominal date of maturity or redemption, and no interest shall accrue for the
period after such nominal date.
SECTION 13.08. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 13.09. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 13.10. In case any one or more of the provisions contained in
this Indenture or in the Debentures of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Debentures, but this Indenture and such Debentures shall
be construed as if such invalid or illegal or unenforceable provision had
never been contained herein or therein.
SECTION 13.11. The Company will have the right at all times to assign
any of its rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company; provided that, in the event of any
such assignment, the Company will remain jointly and severally liable for all
such obligations. Subject to the foregoing, this Indenture is binding upon
and inures to the benefit of the parties thereto and their respective
successors and assigns. This Indenture may not otherwise be assigned by the
parties hereto.
SECTION 13.12. The Company hereby acknowledges that, to the extent
specifically set forth herein, prior to a Security Exchange with respect to
the Debentures of any series held as trust assets of a SunAmerica Capital
Trust, the holders of the Preferred Securities of such SunAmerica Capital
Trust shall expressly be third party beneficiaries of this Indenture. The
Company further acknowledges that, prior to a Security Exchange with respect
to Debentures of any series held as trust assets of a SunAmerica Capital
Trust, if the Property Trustee of such SunAmerica Capital Trust fails to
enforce its rights under this Indenture as the holder of the Debentures of a
series held as trust assets of such SunAmerica Capital Trust, any holder of the
Preferred Securities of such SunAmerica Capital Trust may, after a period of
30 days has elapsed from such holder's written request to such Property
Trustee to enforce such rights, institute legal proceedings directly against
the Company to enforce such Property Trustee's rights under this Indenture
without first instituting any legal proceedings against such Property Trustee
or any other person or entity.
ARTICLE FOURTEEN
Subordination of Debentures
SECTION 14.01. The Company, for itself, its successors and assigns,
covenants and agrees, and each holder of a Debenture, by its acceptance
thereof, likewise covenants and agrees, that the payment of the principal of,
premium, if any, and interest on, each and all of the Debentures is hereby
expressly subordinated, to the extent and in the manner hereinafter in this
Article Fourteen set forth, in right of payment to the prior payment in full
of all Senior Indebtedness.
SECTION 14.02.
(a) In the event of any insolvency or bankruptcy proceedings, and any
receivership, liquidation, reorganization or other similar proceedings in
connection therewith, relative to the Company or to its creditors, as such,
or to its property, and in the event of any proceedings for voluntary
liquidation, dissolution or other winding up of the Company, whether or not
involving insolvency or bankruptcy, and in the event of any execution sale,
then the holders of Senior Indebtedness shall be entitled to receive payment
in full of principal thereof and interest due thereon (including without
limitation, except to the extent, if any, prohibited by mandatory provisions
of law, post-petition interest in any such proceedings) in money of all
Senior Indebtedness before the holders of Debentures are entitled to receive
any payment on account of the principal of or interest on the indebtedness
evidenced by the Debentures, and to that end the holders of Senior
Indebtedness shall be entitled to receive for application in payment thereof
any payment or distribution of any kind or character, whether in cash or
property or securities, which may be payable or deliverable in connection
with any such proceedings or sale in respect of the principal of or interest
on the Debentures other than securities of the Company as reorganized or
readjusted or securities of the Company or any other corporation provided
for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article Fourteen with
respect to the Debentures, to the payment of all indebtedness of the nature
of Senior Indebtedness, provided that the rights of the holders of the
Senior Indebtedness are not altered by such reorganization or readjustment;
(b) In the event and during the continuation of any default in payment
of any Senior Indebtedness or if any event of default, as therein defined,
shall exist under any Senior Indebtedness or any agreement pursuant to which
any Senior Indebtedness is issued, no payment of the principal of, premium
if any, or interest on the Debentures shall be made and the Company
covenants that it will, upon ascertaining any such default or event of
default, provide written notice to the Trustee of such default or event of
default;
(c) In the event that the Debentures of any series are declared due
and payable before their expressed maturity because of the occurrence of an
Event of Default (under circumstances when the provisions of subsection (a)
of this Section 14.02 shall not be applicable), the holders of all Senior
Indebtedness shall be entitled to receive payment in full in money of such
Senior Indebtedness before such holders of Debentures are entitled to
receive any payment on account of the principal of or interest on the
Debentures; and
(d) No holder of Senior Indebtedness shall be prejudiced in his right
to enforce subordination of the Debentures by any act or failure to act on
the part of the Company.
SECTION 14.03 In the event that, notwithstanding the provisions of
Section 14.02, any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted or securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in this Article Fourteen with respect to the Debentures, to the
payment of all indebtedness of the nature of Senior Indebtedness, provided
that the rights of the holders of the Senior Indebtedness are not altered by
such reorganization or readjustment) shall be received by the holders or by the
Trustee for their benefit in connection with any proceedings or sale referred
to in subsection (a) of Section 14.02 before all Senior Indebtedness is paid
in full in money, such payment or distribution shall be paid over to the
holders of such Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, for application to the payment of
all Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full in money, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.
From and after the payment in full in money of all Senior
Indebtedness, the holders of Debentures (together with the holders of any
other indebtedness of the Company which is subordinate in right of payment to
the payment in full of all Senior Indebtedness, which is not subordinate in
right of payment to the Debentures and which by its terms grants such right of
subrogation to the holder thereof) shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of assets
or securities of the Company applicable to the Senior Indebtedness until the
Debentures shall be paid in full, and, for the purposes of such subrogation,
no such payments or distributions to the holders of Senior Indebtedness of
assets or securities, which otherwise would have been payable or distributable
to holders of Debentures , shall, as between the Company, its creditors other
than the holders of Senior Indebtedness, and the holders, be deemed to be a
payment by the Company to or on account of the Senior Indebtedness, it being
understood that the provisions of this Article Fourteen are and are intended
solely for the purpose of defining the relative rights of the holders, on the
one hand, and the holders of the Senior Indebtedness, on the other hand, and
nothing contained in this Article Fourteen or elsewhere in this Indenture or
in the Debentures is intended to or shall impair as between the Company, its
creditors other than the holders of Senior Indebtedness, and the holders, the
obligation of the Company, which is unconditional and absolute, to pay to the
holders the principal of and interest on the Debentures as and when the same
shall become due and payable in accordance with their terms, or to affect the
relative rights of the holders and creditors of the Company other than the
holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the holder of any Debenture from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture subject to the rights of the holders of Senior Indebtedness, under
Section 14.02, to receive cash, property or securities of the Company
otherwise payable or deliverable to the holders of the Debentures.
Upon any distribution or payment in connection with any proceedings or
sale referred to in subsection (a) of Section 14.02, the Trustee, subject as
between the Trustee and the holders to the provisions of Sections 7.01 and
7.02 hereof, shall be entitled to rely upon a certificate of the liquidating
trustee or agent or other person making any distribution or payment to the
Trustee for the purpose of ascertaining the holders of Senior Indebtedness
entitled to participate in such payment or distribution, the amount of such
Senior Indebtedness or the amount payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Article Fourteen . In the event that the Trustee determines, in good faith,
that further evidence is required with respect to the right of any person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Section 14.03, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such person, as to the extent to which such person
is entitled to participate in such payment or distribution, and as to other
facts pertinent to the rights of such person under this Section 14.03, and if
such evidence is not furnished, the Trustee may defer any payment to such
person pending judicial determination as to the right of such person to
receive such payment.
The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness, and shall not be liable to any such
holders if it shall in good faith pay over or distribute to holders of
Debentures or the Company or any other person moneys or assets to which any
holders of Senior Indebtedness shall be entitled by virtue of Article Fourteen
of this Indenture or otherwise.
SECTION 14.04 Nothing contained in this Article Fourteen or
elsewhere in this Indenture, or in any of the Debentures, shall prevent at any
time, (a) the Company from making payments at any time of principal of or
interest on the Debentures, except under the conditions described in Section
14.02 or during the pendency of any proceedings or sale therein referred to,
provided, however, that payments of principal of or interest on the Debentures
shall only be made by the Company within three business days of the due dates
for such payments or (b) the application by the Trustee of any moneys
deposited with it hereunder to the payment of or on account of the principal
of or interest on the Debentures, if at the time of such deposit the Trustee
did not have written notice in accordance with Section 14.06 of any event
prohibiting the making of such deposit by the Company or if in the event of
redemption, the Trustee did not have such written notice prior to the time
that the notice of redemption pursuant to Section 3.02 was given (which notice
of redemption shall in no event be given more than 60 days prior to the date
fixed for redemption).
SECTION 14.05 Each Debentureholder by his acceptance of a Debenture
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination as
provided in this Article Fourteen and appoints the Trustee as attorney-in-fact
for any and all such purposes, including, in the event of any dissolution,
winding up, liquidation or reorganization of the Company (whether in
bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of the Company, the immediate filing of a claim for the
unpaid balance of such Debentureholder's Debentures in the form required in
said proceedings and cause said claim to be approved.
SECTION 14.06 Notwithstanding the provisions of this Article
Fourteen or any other provisions of this Indenture, the Trustee shall not be
charged with the knowledge of the existence of any facts which would prohibit
the making of any payment of moneys to the Trustee, unless and until the
Trustee shall have received written notice thereof from the Company or from
the holder or the representative of any class of Senior Indebtedness; provided,
however, that if at least two business days prior to the date upon which by
the terms hereof any such monies may become payable for any purpose
(including, without limitation, the payment of either the cash amount payable
at maturity or interest on any Debenture) the Trustee shall not have received
with respect to such monies the notice provided for in this Section 14.06,
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply the
same to the purpose for which they were received, and shall not be affected by
any notice to the contrary, which may be received by it on or after such two
business days prior to such date.
SECTION 14.07 The Trustee shall be entitled to all the rights set
forth in this Article Fourteen with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness.
SECTION 14.08 In case at any time any paying agent other than the
Trustee shall be appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article Fourteen shall in such case (unless the
context shall otherwise require) be construed as extending to and including
such paying agent within its meaning as fully for all intents and purposes as
if such paying agent were named in this Article Fourteen in place of the
Trustee.
The First National Bank of Chicago, as Trustee, hereby accepts the
trust in this Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
SUNAMERICA INC.
By ______________________________
Name: James R. Belardi
Title: Senior Vice President
and Treasurer
Attest:
By ________________________
Name: Susan L. Harris
Title: Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By ______________________________
Name: R.D. Manella
Title: Vice President
Attest:
By ______________________
Assistant Secretary
STATE OF CALIFORNIA )
ss.:
COUNTY OF LOS ANGELES )
On June ____, 1995 before me, ____________________, Notary Public,
personally appeared ______________________ and
/ / personally known to me -OR -
/ / proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
_____________________________
Signature of Notary
CAPACITY CLAIMED BY SIGNER
/ / INDIVIDUAL(S) _____________________
/XX/ CORPORATE OFFICER(S) Senior Vice President and Treasurer
/ / PARTNER(S)
/ / ATTORNEY-IN-FACT
/ / TRUSTEE(S)
/ / GUARDIAN/CONSERVATOR
/ / OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
SUNAMERICA INC.
STATE OF ILLINOIS )
ss.:
COUNTY OF COOK )
On June ___, 1995 before me, __________________, Notary Public,
personally appeared ___________________ and
/ / personally known to me - OR -
/ / proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
_____________________________
Signature of Notary
CAPACITY CLAIMED BY SIGNER
/ / INDIVIDUAL(S) _________________________
/ / CORPORATE OFFICER(S) / / TRUST OFFICER
/ / ATTORNEY-IN-FACT
/ / TRUSTEE(S)
/ / GUARDIAN/CONSERVATOR
/ / OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
THE FIRST NATIONAL BANK OF CHICAGO
Exhibit 4.10
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
SunAmerica Capital Trust [_]
[____________], 199[_]
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated
and effective as of [____________], 199[_] by the undersigned trustees
(together with all other Persons from time to time duly appointed and serving
as trustees in accordance with the provisions of this Declaration, the
"Trustees"), SunAmerica Inc., a Maryland corporation, as trust sponsor
("SunAmerica" or the "Sponsor"), and by the holders, from time to time, of
undivided beneficial interests in the assets of the Trust to be issued
pursuant to this Declaration.
WHEREAS, the Sponsor and the Trustees entered into a
Declaration of Trust dated as of August 31, 1995 (the "Original Declaration")
in order to establish a statutory business trust (the "Trust") under the
Business Trust Act (as hereinafter defined);
WHEREAS, the Certificate of Trust (the "Certificate of Trust")
of the Trust was filed with the office of the Secretary of State of the State
of Delaware on September 6, 1995;
WHEREAS, the Trustees and the Sponsor desire to continue the
Trust pursuant to the Business Trust Act for the purpose of, as described more
fully in Section 3.3 hereof, (i) issuing and selling Preferred Securities (as
defined herein) representing undivided beneficial interests in the assets of
the Trust and acquiring with the proceeds of such sales from SunAmerica
Debentures (as hereinafter defined) issued under the Indenture (as hereinafter
defined) to be held as assets of the Trust and (ii) issuing and selling Common
Securities (as defined herein) representing undivided beneficial interests in
the assets of the Trust to SunAmerica in exchange for cash and investing the
proceeds thereof in additional Debentures issued under the Indenture to be
held as assets of the Trust;(1) and
- ----------
(1) In the event an over-allotment of Preferred Securities is offered to
Underwriters, appropriate changes to the "WHEREAS" clauses and other
provisions may be needed in respect of issuance of additional Preferred
Securities and Common Securities.
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act, that
the Original Declaration be amended and restated in its entirety as provided
herein and that this Declaration constitute the governing instrument of such
business trust, the Trustees declare that all assets referred to in clauses
(i) and (ii) of the previous Whereas clause contributed to or purchased by the
Trust will be held in trust for the benefit of the Holders (as defined herein)
from time to time, of the Certificates (as defined herein) representing
undivided beneficial interests in the assets of the Trust issued hereunder,
subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Amended and Restated Declaration of Trust (including Exhibits A, B
and C hereto (the "Exhibits")) as modified, supplemented or amended from time
to time;
(d) all references in this Declaration to Articles and
Sections and Exhibits are to Articles and Sections of and Exhibits to this
Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Appointment Event" means an event defined in the terms of the
Preferred Securities set forth in Exhibit B which entitles the Holders of a
Majority in liquidation amount of the Preferred Securities to appoint a Special
Regular Trustee.
"Book Entry Interest" means a beneficial interest in a Global
Certificate registered in the name of a Clearing Agency or a nominee thereof,
ownership and transfers of which shall be maintained and made through book
entries by such Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Certificate" means a Common Security Certificate or a
Preferred Security Certificate.
"Certificate of Trust" has the meaning set forth in the second
Whereas clause above.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting
as depository for the Preferred Securities and in whose name or in the name of
a nominee of that organization, shall be registered a Global Certificate and
which shall undertake to effect book entry transfers and pledges of the
Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation. A reference to a specific section
((Sec.)) of the Code refers not only to such specific section but also to any
corresponding provision of any federal tax statute enacted after the date of
this Declaration, as such specific section or corresponding provision is in
effect on the date of application of the provisions of this Declaration
containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.1(b).
"Common Security Certificate" means a definitive certificate in
fully registered form representing a Common Security substantially in the form
of Annex I to Exhibit C.
"Covered Person" means (i) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or its
Affiliates, (ii) any officer, director, shareholder, employees,
representatives or agents of SunAmerica or its Affiliates and (iii) the
Holders from time to time of the Securities.
"Debenture Trustee" means [________________________], as
trustee under the Indenture until a successor is appointed thereunder and
thereafter means such successor trustee.
"Debentures" means the series of Junior Subordinated Debentures
issued by SunAmerica under the Indenture to the Property Trustee and entitled
the "[____]% Junior Subordinated Debentures, Series [_], due 20[__]".
"Definitive Preferred Security Certificates" has the meaning
set forth in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section
5.1(a)(3).
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" in respect of the Securities means an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Fiscal Year" has the meaning specified in Section 11.1.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee, or any employee or agent of the
Trust or its Affiliates.
"Indenture" means the Indenture dated as of March 15, 1995
between SunAmerica and the Debenture Trustee as supplemented by (i) the First
Supplemental Indenture thereto dated such date and (ii) the [Second]
Supplemental Indenture dated as of [___________], 199[_], pursuant to which the
Debentures are to be issued.
"Indenture Event of Default" means an event or condition
defined as an "Event of Default" with respect to the Debentures under Section
6.01(a) of the Indenture has occurred and is continuing.
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time or any successor legislation.
"Legal Action" has the meaning specified in Section 3.6(g).
"Liquidation Distribution" has the meaning set forth in
Exhibits B and C hereto establishing the terms of the Securities.
"Majority in liquidation amount of the Securities" means,
except as otherwise required by the Trust Indenture Act and except as provided
in the penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context
may require, Holder(s) of outstanding Preferred Securities or Common
Securities voting separately as a class, who are the record owners of a
relevant class of Securities whose liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) represents more than 50% of the liquidation amount of all
outstanding Securities of such class.
"Ministerial Action" has the meaning set forth in the terms of
the Securities as set forth in Exhibits B and C hereto.
"Original Declaration" has the meaning set forth in the first
WHEREAS clause above.
"Paying Agent" has the meaning specified in Section 3.8(i).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Guarantee" means the Guarantee Agreement to be dated
as of [____________], 199[_] of SunAmerica in respect of the Preferred
Securities.
"Preferred Security" has the meaning specified in Section
7.1(b).
"Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a definitive certificate
in fully registered form representing a Preferred Security substantially in
the form of Annex I to Exhibit B.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.1(c) and having the duties set forth for
the Property Trustee herein.
"Property Account" has the meaning specified in Section
3.8(c)(i).
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both such Regular Trustees.
"Regular Trustee" means any Trustee other than the Property
Trustee and the Delaware Trustee.
"Related Party" means any direct or indirect wholly owned
subsidiary of SunAmerica or any other Person which owns, directly or
indirectly, 100% of the outstanding voting securities of SunAmerica.
"Resignation Request" has the meaning specified in Section
5.2(d).
"Responsible Officer" means, with respect to the Property
Trustee, the chairman of the board of directors, the president, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Property Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act or
any successor rule thereunder.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time or any successor legislation.
"66-2/3% in liquidation amount of the Securities" means, except
as otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context
may require, Holder(s) of outstanding Preferred Securities or Common
Securities, voting separately as a class, who are the record owners of a
relevant class of Securities whose liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) represents 66-2/3% or more of the liquidation amount of all
outstanding Securities of such class.
"Special Event" has the meaning set forth in the terms of the
Securities as set forth in Exhibits B and C hereto.
"Special Regular Trustee" means a Regular Trustee appointed by
the Holders of a Majority in liquidation amount of the Preferred Securities in
accordance with Section 5.2(a)(ii)(B).
"Sponsor" or "SunAmerica" means SunAmerica Inc., a Maryland
corporation, or any successor entity in a merger, in its capacity as sponsor
of the Trust.
"Successor Delaware Trustee" has the meaning specified in
Section 5.2(b)(ii).
"Successor Property Trustee" means a successor Trustee
possessing the qualifications to act as Property Trustee under Section 5.1(c).
"10% in liquidation amount of the Securities" means, except as
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context
may require, Holder(s) of outstanding Preferred Securities or Common
Securities, voting separately as a class, who are the record owners of a
relevant class of Securities whose liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) represents 10% or more of the liquidation amount of all
outstanding Securities of such class.
"Treasury Regulations" means the income tax regulations
including temporary and proposed regulations, promulgated under the Code by
the United States Treasury, as such regulations may be amended from time to
time (including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration and
shall, to the extent applicable, be governed by such provisions;
(b) if and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control;
(c) the Property Trustee, to the extent permitted by
applicable law and/or the rules and regulations of the Commission, shall be
the only Trustee which is a trustee for the purposes of the Trust Indenture
Act; and
(d) the application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Preferred Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide the Property Trustee with such information as is
required under Section 312(a) of the Trust Indenture Act at the times and in
the manner provided in Section 312(a); and
(b) the Property Trustee shall comply with its obligations
under Sections 310(b), 311 and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year, the Property Trustee
shall provide to the Holders of the Securities such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form, in the manner and
at the times provided by Section 313 of the Trust Indenture Act. The
Property Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee, the Commission and the Holders of
the Securities, as applicable, such documents, reports and information as
required by Section 314(a)(1)-(3) (if any) of the Trust Indenture Act and the
compliance certificates required by Section 314(a)(4) and (c) of the Trust
Indenture Act, any such certificates to be provided in the form, in the manner
and at the times required by Section 314(a)(4) and (c) of the Trust Indenture
Act (provided that any certificate to be provided pursuant to Section
314(a)(4) of the Trust Indenture Act shall be provided within 120 days of the
end of each Fiscal Year).
SECTION 2.5 Evidence of Compliance with
Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Declaration which
relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given pursuant to
Section 314(c) shall comply with Section 314(e) of the Trust Indenture Act.
SECTION 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(c), Holders of Preferred Securities
may, by vote of at least a Majority in liquidation amount of the Preferred
Securities (A) in accordance with the terms of the Preferred Securities,
direct the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee or (B) on behalf of the Holders of all Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences; provided that if the Event of Default arises
out of an Indenture Event of Default:
(i) which is not waivable under the Indenture, the Event of
Default under this Declaration shall also be not waivable; or
(ii) which requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures, or (2) each holder of
Debentures, the Event of Default under this Declaration may only be
waived by, in the case of clause (1) above, the vote of Holders of
Preferred Securities representing such specified percentage of the
aggregate liquidation amount of the Preferred Securities or, in the
case of clause (2) above, each Holder of Preferred Securities.
Upon such waiver, any such default shall cease to exist, and any Event of
Default with respect to the Preferred Securities arising therefrom shall be
deemed to have been cured for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default
with respect to the Preferred Securities or impair any right consequent
thereon.
(b) Subject to Section 2.6(c), Holders of Common Securities
may by vote of at least a Majority in liquidation amount of the Common
Securities, (A) in accordance with the terms of the Common Securities, direct
the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee or exercising any trust or power conferred
upon the Property Trustee or (B) on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the Event of Default arises
out of an Indenture Event of Default:
(i) which is not waivable under the Indenture, except where
the Holders of the Common Securities are deemed to have waived such
Event of Default under the Declaration as provided below, the Event
of Default under this Declaration shall also be not waivable; or
(ii) which requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (2) each holder of
Debentures, except where the holders of the Common Securities are
deemed to have waived such Event of Default under this Declaration as
provided below, the Event of Default under this Declaration may only
be waived by, in the case of clause (1) above, the vote of Holders of
Common Securities representing such specified percentage of the
aggregate liquidation amount of the Common Securities or, in the case
of clause (2) above, each holder of Common Securities; and
provided, further, that each Holder of Common Securities will be deemed to
have waived any Event of Default with respect to the Common Securities and its
consequences until all Events of Default with respect to the Preferred
Securities have been cured, waived by the Holders of Preferred Securities as
provided in this Declaration or otherwise eliminated and until all Events of
Default with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee will be deemed to be acting solely
on behalf of the Holders of the Preferred Securities and only the Holders of
the Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of this Declaration or the Securities. In the event
that any Event of Default with respect to the Preferred Securities is waived
by the Holders of Preferred Securities as provided in this Declaration, the
Holders of Common Securities agree that such waiver shall also constitute the
waiver of such Event of Default with respect to the Common Securities for all
purposes under this Declaration without any further act, vote or consent of
the Holders of the Common Securities. Subject to the foregoing provisions
of this Section 2.6(b), upon such waiver, any such default shall cease to
exist and any Event of Default with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every purpose of
this Declaration, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Common Securities or
impair any right consequent thereon.
(c) The right of any Holder of Securities to receive payment
of Distributions on the Securities in accordance with this Declaration and the
terms of the Securities set forth in Exhibits B and C on or after the
respective payment dates therefor, or to institute suit for the enforcement of
any such payment on or after such payment dates, shall not be impaired without
the consent of such Holder.
(d) As provided in the terms of the Securities set forth in
Exhibits B and C hereto, a waiver of an Indenture Event of Default by the
Property Trustee at the written direction of the Holders of the Preferred
Securities constitutes a waiver of the corresponding Event of Default under
this Declaration in respect of the Securities.
SECTION 2.7 Disclosure of Information.
The disclosure of information as to the names and addresses of
the Holders of the Securities in accordance with Section 312 of the Trust
Indenture Act, regardless of the source from which such information was
derived, shall not be deemed to be a violation of any existing law, or any law
hereafter enacted which does not specifically refer to Section 312 of the
Trust Indenture Act, nor shall the Property Trustee be held accountable by
reason of mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust continued by this Declaration is named "SunAmerica
Capital Trust [_]" as such name may be modified from time to time by the
Regular Trustees following written notice to the Holders of Securities. The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
SunAmerica Inc., 1 SunAmerica Center, Los Angeles, California 90067-6022.
Upon ten days' written notice to the Holders, the Regular Trustees may change
the location of the Trust's principal office. [The name of the registered
agent and office of the Trust in the State of Delaware is
[_______________________________________________________].(2) At any time,
the Regular Trustees may designate another registered agent and/or registered
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(2) Registered agent not required under Delaware law. office.]
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are: (a)(i)
to issue and sell Preferred Securities and acquire with the proceeds of such
sales from SunAmerica Debentures issued under the Indenture having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities so delivered; (ii) to enter into such agreements and
arrangements as may be necessary in connection with the sale of Preferred
Securities to the initial purchasers thereof [(including Underwriting
Agreements providing for the sale of additional Preferred Securities
pursuant to an over-allotment option granted to the Underwriters)](3) and
to take all action, and exercise such discretion, as may be necessary or
desirable in connection with such purchases and to file such registration
statements or make such other filings under the Securities Act, the
Exchange Act or state securities or "Blue Sky" laws as may be necessary or
desirable in connection with such purchases and the issuance of the
Preferred Securities; and (iii) to issue and sell Common Securities to
SunAmerica for cash and use the proceeds of such sale to purchase as trust
assets an equal aggregate principal amount of Debentures issued under the
Indenture; and (b) except as otherwise limited herein, to engage in only
those other activities necessary or incidental thereto. The Trust shall
not borrow money, issue debt or reinvest proceeds derived from investments,
pledge any of its assets or at any time while the Securities are
outstanding, otherwise undertake (or permit to be undertaken) any activity
that would result in or cause the Trust to be treated as anything other
than a grantor trust for United States federal income tax purposes.
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(3) See preceding footnotes regarding over-allotment option.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to
the specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee in accordance with its powers shall constitute the act of and
serve to bind the Trust. In dealing with the Trustees acting on behalf of the
Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to
rely conclusively on the power and authority of the Trustees as set forth in
this Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Debentures and the Property Account or unless otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of
the Trust, but shall have an individual undivided beneficial interest in the
assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, authority
and duty to cause the Trust, and shall cause the Trust, to engage in the
following activities:
(a) to issue Preferred Securities and Common Securities, in
each case in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there
shall be no interests in the Trust other than the Securities and the
issuance of Securities shall be limited to [(x)] a one-time, simultaneous
issuance of both Preferred Securities and Common Securities [and (y) any
subsequent issuance of both Preferred Securities and Common Securities
pursuant to an over-allotment option granted to Underwriters of Preferred
Securities];(4)
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(4) See preceding footnotes regarding over-allotments.
(b) in connection with the issuance of the Preferred
Securities, at the direction of the Sponsor, to effect or cause to be effected
the filings, and to execute or cause to be executed, the documents, set forth
in Section 3.11;
(c) to acquire as trust assets Debentures with the proceeds of
the sale of the Preferred Securities and to acquire as trust assets additional
Debentures with the proceeds of the sale of the Common Securities; provided,
however, that the Regular Trustees shall cause legal title to all of the
Debentures to be vested in, and the Debentures to be held of record in the
name of, the Property Trustee for the benefit of the Holders of the Preferred
Securities and the Common Securities;
(d) to cause the Trust to enter into one or more underwriting,
purchase, placement, subscription agreements or and such other agreements and
arrangements as may be necessary or desirable in connection with the sale of
Preferred Securities to the initial purchasers thereof and the consummation
thereof, and to take all action, and exercise all discretion, as may be
necessary or desirable in connection with the consummation thereof;
(e) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Special Event; provided, that the
Regular Trustees shall consult with the Sponsor and the Property Trustee
before taking or refraining to take any Ministerial Action in relation to a
Special Event;
(f) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including for
the purposes of Section 316(c) of the Trust Indenture Act and with respect to
Distributions, voting rights, redemptions, and exchanges, and to issue
relevant notices to Holders of the Preferred Securities and Common Securities
as to such actions and applicable record dates;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property
Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors
and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give the certificate to the Property Trustee required
by Section 314(a)(4) of the Trust Indenture Act, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses which are necessary or incidental to
carrying out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities, the Regular Trustees hereby initially
appointing the Property Trustee for such purposes;
(m) to take all actions and perform such duties as may be
required of the Regular Trustee pursuant to the terms of the Securities set
forth in Exhibits B and C hereto;
(n) to execute all documents or instruments, perform all
duties and powers and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing;
(o) to take all action which may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders of the
Securities or to enable the Trust to effect the purposes for which the Trust
has been created;
(p) to take all action, not inconsistent with this
Declaration or with applicable law, which the Regular Trustees determine in
their discretion to be reasonable and necessary or desirable in carrying out
the activities of the Trust as set out in this Section 3.6, in order that:
(i) the Trust will not be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) the Trust will not be classified for United States
federal income tax purposes as an association taxable as a
corporation or a partnership and will be treated as a grantor trust
for United States federal income tax purposes; and
(iii) the Trust will comply with any requirements imposed by
any taxing authority on holders of instruments treated as
indebtedness for United States federal income tax purposes;
provided that such action does not adversely affect the interests of Holders;
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf
of the Trust; and
(r) subject to the requirements of Rule 3a-7 and Section
317(b) of the Trust Indenture Act, to appoint one or more Paying Agents in
addition to the Property Trustee.
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner which is consistent with the purposes and functions of
the Trust set out in Section 3.3 and the Regular Trustees shall not take any
action which is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have
none of the powers nor any of the authority of the Property Trustee set forth
in Section 3.8.
SECTION 3.7 Prohibition of Actions by Trust and Trustees.
The Trust shall not, and the Trustees (including the Property
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall
not and the Trustees (including the Property Trustee) shall not:
(a) invest any proceeds received by the Trust from holding
the Debentures but shall promptly distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the Securities;
(b) acquire any assets other than as expressly provided
herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any loans, other than loans represented by the
Debentures;
(e) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way whatsoever;
(f) issue any securities or other evidences of beneficial
ownership of, or beneficial interests in, the Trust other than the Securities;
(g) incur any indebtedness for borrowed money; or
(h) (i) direct the time, method and place of exercising any
trust or power conferred upon the Debenture Trustee with respect to the
Debentures or the Property Trustee with respect to the Preferred Securities,
(ii) waive any past default that is waivable under Section 6.06 of the
Indenture, (iii) exercise any right to rescind or annul any declaration that
the principal of all of the Debentures shall be due and payable or (iv)
consent to any amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, unless in the case of this
clause (h) the Property Trustee shall have received an unqualified opinion of
nationally recognized independent tax counsel recognized as expert in such
matters to the effect that such action will not cause the Trust to be
classified for United States federal income tax purposes as an association
taxable as a corporation or partnership and that the Trust will continue to be
classified as a grantor trust for United States federal income tax purposes.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and
held of record in the name of the Property Trustee in trust for the benefit of
the Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Article V. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or, if the Property
Trustee does not also act as the Delaware Trustee, the Delaware Trustee.
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
bank account (the "Property Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders of
the Securities and on the receipt of payments of funds made in
respect of the Debentures held by the Property Trustee, deposit such
funds into the Property Account and, without any further acts of the
Property Trustee or the Regular Trustees, promptly make payments to
the Holders of the Preferred Securities and Common Securities from
the Property Account in accordance with Section 6.1. Funds in the
Property Account shall be held uninvested, and without liability for
interest thereon, until disbursed in accordance with this
Declaration. The Property Account shall be an account which is
maintained with a banking institution whose long term unsecured
indebtedness is rated by a "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act, at least equal to (but in no event less
than "A" or the equivalent) the rating assigned to the Preferred
Securities by a nationally recognized statistical rating organization;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect promptly the redemption of the
Preferred Securities and the Common Securities to the extent the
Debentures are redeemed or mature;
(iii) upon notice of distribution issued by the Regular
Trustees in accordance with the terms of the Preferred Securities and
the Common Securities, engage in such ministerial activities as shall
be necessary or appropriate to effect promptly the distribution
pursuant to terms of the Securities of Debentures to Holders of
Securities upon the occurrence of a Special Event; and
(iv) have the legal power to exercise all of the rights,
powers and privileges of a holder of the Debentures under the
Indenture and, if an Event of Default occurs and is continuing, the
Property Trustee, subject to Section 2.6(b), shall for the benefit of
the Holders of the Securities, enforce its rights as holder of the
Debentures under the Indenture, subject to the rights of the Holders
of the Preferred Securities pursuant to the terms of this
Declaration, the Business Trust Act and the Trust Indenture Act.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant
to the terms of the Securities set forth in Exhibits B and C hereto.
(e) The Property Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default or the Property
Trustee's duties and obligations under this Declaration, the Business Trust
Act or the Trust Indenture Act.
(f) All moneys deposited in the Property Account, and all
Debentures held by the Property Trustee for the benefit of the Holders of the
Securities will not be subject to any right, charge, security interest, lien
or claim of any kind in favor of, or for the benefit of the Property Trustee
or its agents or their creditors.
(g) The Property Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities, transmit by mail,
first class postage prepaid, to the holders of the Securities, as their names
and addresses appear upon the register, notice of all defaults with respect to
the Securities known to the Property Trustee, unless such defaults shall have
been cured before the giving of such notice (the term "defaults" for the
purposes of this Section 3.8(g) being hereby defined to be an Indenture Event
of Default, not including any periods of grace provided for in the Indenture
and irrespective of the giving of any notice provided therein); provided, that,
except in the case of default in the payment of the principal of (or premium,
if any) or interest on any of the Debentures, the Property Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers, of the Property Trustee in good faith determine that the withholding
of such notice is in the interests of the Holders of the Securities. The
Property Trustee shall not be deemed to have knowledge of any default, except
(i) a default in the payment of principal, premium or interest on the
Debentures or (ii) any default as to which the Property Trustee shall have
received written notice or a Responsible Officer charged with the
administration of this Declaration shall have obtained written notice.
(h) The Property Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the
proceeds thereof distributed to the Holders of
Securities pursuant to the terms of the Securities;
or
(ii) a Successor Property Trustee has been appointed and
accepted that appointment in accordance with
Article V.
(i) The Property Trustee shall act as paying agent in respect
of the Securities and, subject to Section 3.6(r), may authorize one or more
Persons (each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to the Preferred
Securities. Any such Paying Agent shall comply with Section 317(b) of the
Trust Indenture Act. Any Paying Agent may be removed by the Property Trustee,
after consultation with the Regular Trustees, at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee, subject to Section 3.6(r).
(j) The Property Trustee shall give prompt written notice to
the Holders of the Securities of any notice received by it from SunAmerica of
its election to defer payments of interest on the Debentures by extending the
interest payment period with respect thereto.
(k) Subject to this Section 3.8, the Property Trustee shall
have none of the powers or the authority of the Regular Trustees set forth in
Section 3.6.
(l) The Property Trustee shall exercise the powers, duties and
rights set forth in this Section 3.8 and Section 3.10 in a manner which is
consistent with the purposes and functions of the Trust set out in Section 3.3,
and the Property Trustee shall not take any action which is inconsistent with
the purposes and functions of the Trust set forth in Section 3.3.
SECTION 3.9 Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 5.1(a)(3), the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees and the Property Trustee described in
this Declaration. Except as set forth in Section 5.1(a)(3), the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act. No implied covenants
or obligations shall be read into this Declaration against the Delaware
Trustee.
SECTION 3.10 Certain Rights and Duties of the
Property Trustee.
(a) The Property Trustee, before the occurrence of an Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration, and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.6), the Property Trustee
shall exercise such of the rights and powers vested in it by this Declaration,
and use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this
Declaration, and the Property Trustee shall not be liable
except for the performance of such duties and obligations
as are specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into this
Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as
to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Property Trustee and conforming
to the requirements of this Declaration; but in the case
of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders as provided herein
relating to the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee hereunder or under
the Indenture, or exercising any trust or power conferred upon the
Property Trustee under this Declaration; and
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable
ground for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Declaration or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(c) Subject to the provisions of Section 3.10(a) and (b):
(i) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part
and, if the Trust is excluded from the definition of Investment
Company solely by means of Rule 3a-7, subject to the requirements of
Rule 3a-7, request and rely upon a certificate, which shall comply
with the provisions of Section 314(e) of the Trust Indenture Act,
signed by any two of the Regular Trustees or by an authorized officer
of the Sponsor, as the case may be;
(ii) The Property Trustee (A) may consult with counsel (which
may be counsel to the Sponsor or any of its Affiliates and may
include any of its employees) selected by it in good faith and with
due care and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon and in accordance with
such advice and opinion and (B) shall have the right at any time to
seek instructions concerning the administration of this Declaration
from any court of competent jurisdiction;
(iii) The Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Property Trustee shall not
be responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it in good faith and with due care;
(iv) The Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holders, unless such Holders shall
have offered to the Property Trustee reasonable security and
indemnity against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in complying
with such request or direction; provided that nothing contained in
this clause (iv) shall relieve the Property Trustee of the
obligation, upon the occurrence of an Event of Default (which has not
been cured or waived) to exercise such of the rights and powers
vested in it by this Declaration, and to use the same degree of care
and skill in this exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs; and
(v) Any action taken by the Property Trustee or its agents
hereunder shall bind the Holders of the Securities and the signature
of the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action; and no third party shall be
required to inquire as to the authority of the Property Trustee to so
act, or as to its compliance with any of the terms and provisions of
this Declaration, both of which shall be conclusively evidenced by
the Property Trustee's or its agent's taking such action.
SECTION 3.11 Registration Statement and Related Matters.
In accordance with the Original Declaration, SunAmerica and the
Trustees have authorized and directed, and hereby confirm the authorization
of, SunAmerica, as the sponsor of the Trust, (i) to file with the Commission
and execute, in each case on behalf of the Trust, (a) the Registration
Statement on Form S-3 (File No. 33-[ ]) (the "1933 Act Registration
Statement") including Amendment[s] No. [_] thereto and any further
pre-effective or post-effective amendments to such Registration Statement,
relating to the registration under the Securities Act of the Preferred
Securities of the Trust and (b) a Registration Statement on Form 8-A or other
appropriate form (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under Section 12(b) of
the Exchange Act; (ii) to file with the New York Stock Exchange and execute on
behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Preferred Securities to be listed on the
New York Stock Exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as SunAmerica on behalf of
the Trust, may deem necessary or desirable and (iv) to execute on behalf of the
Trust an [Underwriting Agreement] among the Trust, SunAmerica and any
underwriter, dealer or agent relating to the sale of Preferred Securities to
initial purchasers thereof. In the event that any filing referred to in
clauses (i)-(iii) above is required by the rules and regulations of the
Commission, the New York Stock Exchange or state securities or blue sky laws,
to be executed on behalf of the Trust by the Trustees, the Regular Trustees,
in their capacities as Trustees of the Trust, are hereby authorized and
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that the Property Trustee and the
Delaware Trustee, in their capacities as Trustees of the Trust, shall not be
required to join in any such filing or execute on behalf of the Trust any such
document unless required by the rules and regulations of the Commission, the
New York Stock Exchange or state securities or blue sky laws. In connection
with all of the foregoing, SunAmerica and each Trustee, solely in its capacity
as Trustee of the Trust, have constituted and appointed, and hereby confirm
the appointment of, [___________], [____________] and [___________] and each
of them, as his, her or its, as the case may be, true and lawful
attorneys-in-fact, and agents, with full power of substitution and
resubstitution, for SunAmerica or such Trustee or in SunAmerica's or such
Trustee's name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully to all intents and
purposes as SunAmerica or such Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his or her substitute or substitutes, shall do or cause to
be done by virtue hereof.
SECTION 3.12 Filing of Amendments to Certificate of Trust.
The Certificate of Trust as filed with the Secretary of State
of the State of Delaware on September 6, 1995 is attached hereto as Exhibit A.
On or after the date of execution of this Declaration, the Trustees shall cause
the filing with the Secretary of State of the State of Delaware of such
amendments to the Certificate of Trust as the Trustees shall deem necessary or
desirable.
SECTION 3.13 Execution of Documents by Regular Trustees.
Unless otherwise determined by the Regular Trustees and except
as otherwise required by the Business Trust Act with respect to the
Certificate of Trust or otherwise, a majority of, or if there are only two,
both of, the Regular Trustees are authorized to execute and deliver on behalf
of the Trust any documents which the Regular Trustees have the power and
authority to execute or deliver pursuant to this Declaration.
SECTION 3.14 Trustees Not Responsible for Recitals or
Issuance of Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor and the Trustees do not assume
any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust or
any part thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration or the Securities.
SECTION 3.15 Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Article VIII hereof, shall have existence until [___________], 20[__].
ARTICLE IV
SPONSOR
SECTION 4.1 Purchase of Common Securities by Sponsor.
The Sponsor will purchase Common Securities issued by the Trust
at the same time as the Preferred Securities are issued, such purchase to be
in an amount equal to 3% of the total capital of the Trust.
SECTION 4.2 Expenses.
(a) The Sponsor, in its capacity as Sponsor and not as a
Holder, shall be responsible for and shall pay for all debts and obligations
(other than with respect to the Securities) and all costs and expenses of the
Trust (including, but not limited to, costs and expenses relating to the
organization of the Trust, the issuance of the Preferred Securities to initial
purchasers thereof, the fees and expenses (including reasonable counsel fees
and expenses) of the Trustees (including any amounts payable under Article X),
the costs and expenses relating to the operation of the Trust, including
without limitation, costs and expenses of accountants, attorneys, statistical
or bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the disposition of Trust
assets).
(b) The Sponsor, in its capacity as Sponsor and not as a
Holder, will pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
(c) The Sponsor's obligations under this Section 4.2 shall be
for the benefit of, and shall be enforceable by, any Person to whom any such
debts, obligations, costs, expenses and taxes are owed (a "Creditor") whether
or not such Creditor has received notice hereof. Any such Creditor may
enforce the Sponsor's obligations under this Section 4.2 directly against the
Sponsor and the Sponsor irrevocably waives any right or remedy to require that
any such Creditor take any action against the Trust or any other Person before
proceeding against the Sponsor. The Sponsor agrees to execute such additional
agreements as may be necessary or desirable in order to give full effect to
the provisions of this Section 4.2.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Qualifications.
(a) The number of Trustees initially shall be five (5). At
any time (i) before the issuance of the Securities, the Sponsor may, by
written instrument, increase or decrease the number of, and appoint, remove
and replace the, Trustees, and (ii) after the issuance of the Securities and
except as provided in clause (5) below and Section 5.2(a)(ii)(B) with respect
to the Special Regular Trustee, the number of Trustees may be increased or
decreased solely by, and Trustees may be appointed, removed or replaced solely
by, vote of Holders of Common Securities representing a Majority in
liquidation amount of the Common Securities voting as a class; provided that
in any case:
(1) the number of Trustees shall be at least five (5)
unless the Trustee that acts as the Property Trustee also acts
as the Delaware Trustee, in which cases the number of Trustees
shall be at least three (3);
(2) unless a Special Regular Trustee has been appointed
(which appointment shall not impair the right of the Holders of
Common Securities to increase or decrease the number of, or to
appoint, remove or replace, Trustees (other than the Special
Regular Trustee) as provided above), at least a majority of the
Trustees shall at all times be officers, directors or employees
of SunAmerica;
(3) if required by the Business Trust Act, one Trustee
(the "Delaware Trustee") shall be either a natural person who
is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in
the State of Delaware and otherwise is permitted to act as a
Trustee hereunder under the laws of the State of Delaware,
except that if the Property Trustee has its principal place of
business in the State of Delaware and otherwise is permitted to
act as a Trustee hereunder under the laws of the State of
Delaware, then the Property Trustee shall also be the Delaware
Trustee and Section 3.9 shall have no application;
(4) there shall at all times be a Property Trustee
hereunder which shall satisfy the requirements of Section
5.1(c); and
(5) the number of Trustees shall be increased
automatically by one (1) if an Appointment Event has occurred
and is continuing and the Holders of a Majority in liquidation
amount of the Preferred Securities appoint a Special Regular
Trustee in accordance with Section 5.2(a)(ii)(B) and the terms
of the Preferred Securities.
Each Trustee shall be either a natural person at least 21 years of age or a
legal entity which shall act through one or more duly appointed
representatives.
(b) The initial Regular Trustees shall be:
James R. Belardi
Scott H. Richland
Scott L. Robinson
c/o SunAmerica Inc.
1 SunAmerica Center
Los Angeles, California 90067-6022
(c) There shall at all times be one Trustee which shall act as
Property Trustee. In order to act as Property Trustee hereunder, such Trustee
shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
Section 5.1(c)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published; and
(iii) if the Trust is excluded from the definition of an
Investment Company solely by reason of Rule 3a-7 and to the extent
Rule 3a-7 requires a trustee having certain qualifications to hold
title to the "eligible assets" (as defined in Rule 3a-7) of the
Trust, the Property Trustee shall possess those qualifications.
If at any time the Property Trustee shall cease to satisfy the
requirements of clauses (i)-(iii) above, the Property Trustee shall
immediately resign in the manner and with the effect set out in Section
5.2(d). If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Property Trustee and the Holders of the Common Securities (as if such
Holders were the obligor referred to in Section 310(b) of the Trust Indenture
Act) shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act. The Preferred Guarantee shall be deemed to be
specifically described in this Declaration for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
The initial Trustee which shall serve as the Property Trustee
is The Bank of New York, whose address is as set forth in Section 14.1(b).
(d) The initial Trustee which shall serve as the Delaware
Trustee is The Bank of New York (Delaware), whose address is as set forth in
Section 14.1(c).
(e) Any action taken by (i) Holders of Common Securities
pursuant to this Article V or (ii) Holders of Preferred Securities pursuant to
this Article V to appoint or remove a Special Regular Trustee upon the
occurrence of an Appointment Event, shall be taken at a meeting of Holders of
Common Securities or Preferred Securities, as the case may be, convened for
such purpose or by written consent as provided in Section 12.2.
(f) No amendment may be made to this Section 5.1 which would
change any rights with respect to the number, existence or appointment and
removal of Trustees (other than any Special Regular Trustee), except with the
consent of each Holder of Common Securities.
(g) No amendment may be made to this Section 5.1 or Section
5.2(a)(ii)(B), which would change the rights of Holders of Preferred
Securities to appoint, remove or replace a Special Regular Trustee except with
the consent of each Holder of Preferred Securities.
SECTION 5.2 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.2(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of the Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of the Securities,
(A) other than with respect to the Special Regular Trustee,
by vote of the Holders of a Majority in liquidation
amount of the Common Securities voting as a class; and
(B) if an Appointment Event has occurred and is continuing,
one (1) additional Regular Trustee (the "Special
Regular Trustee") may be appointed, who need not be an
Affiliate of the Sponsor, by vote of the Holders of a
Majority in liquidation amount of the Preferred
Securities, voting as a class and such Special Regular
Trustee may only be removed (otherwise than by the
operation of Section 5.2(c)), by vote of the Holders of
a Majority in liquidation amount of the Preferred
Securities voting as a class.
(b) (i) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 5.2(a) until a Successor Property
Trustee possessing the qualifications to act as Property
Trustee under Section 5.1(c) has been appointed and has accepted
such appointment by written instrument executed by such
Successor Property Trustee and delivered to the Regular
Trustees, the Sponsor and the Property Trustee being removed;
and
(ii) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with Section 5.2(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under
Section 5.1(a)(3) (a "Successor Delaware Trustee") has been
appointed and has accepted such appointment by written
instrument executed by such Successor Delaware Trustee and
delivered to the Regular Trustees, the Sponsor and the Delaware
Trustee being removed.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation;
provided that a Special Regular Trustee shall only hold office while
an Appointment Event is continuing and shall cease to hold office
immediately after the Appointment Event pursuant to which the Special
Regular Trustee was appointed and all other Appointment Events cease
to be continuing.
(d) Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument (a "Resignation Request") in
writing signed by the Trustee and delivered to the Sponsor and the
Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that:
(i) no such resignation of the Trustee that acts as the
Property Trustee shall be effective until:
(A) a Successor Property Trustee possessing the
qualifications to act as Property Trustee
under Section 5.1(c) has been appointed and
has accepted such appointment by instrument
executed by such Successor Property Trustee
and delivered to the Trust, the Sponsor and
the resigning Property Trustee; or
(B) if the Trust is excluded from the definition
of an Investment Company solely by reason of
Rule 3a-7, until the assets of the Trust have
been completely liquidated and the proceeds
thereof distributed to the Holders of the
Securities;
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee; and
(iii) no such resignation of a Special Regular Trustee shall
be effective until the 60th day following delivery of
the Resignation Request to the Sponsor and the Trust or
such later date specified in the Resignation Request
during which period the Holders of the Preferred
Securities shall have the right to appoint a successor
Special Regular Trustee as provided in this Article V.
(e) If no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this
Section 5.2 within 60 days after delivery to the Sponsor and the
Trust of a Resignation Request, the resigning Property Trustee or
Delaware Trustee may petition any court of competent jurisdiction for
appointment of a Successor Property Trustee or Successor Delaware
Trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
SECTION 5.3 Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1 or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by a majority of the
Regular Trustees shall be conclusive evidence of the existence of such
vacancy. The vacancy shall be filled with a Trustee appointed in accordance
with the requirements of this Article V.
SECTION 5.4 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of
a Trustee, or any one of them, shall not operate to annul the Trust. Whenever
a vacancy in the number of Regular Trustees shall occur until such vacancy is
filled as provided in this Article V, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees
by this Declaration.
SECTION 5.5 Meetings.
Meetings of the Regular Trustees shall be held from time to
time upon the call of any Trustee. Regular meetings of the Regular Trustees
may be held at a time and place fixed by resolution of the Regular Trustees.
Notice of any in-person meeting of the Regular Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 48 hours before such meeting.
Notice of any telephonic meeting of the Regular Trustees or any committee
thereof shall be hand delivered or otherwise delivered in writing (including
by facsimile, with a hard copy by overnight courier) not less than 24 hours
before such meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in
person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any
activity on the ground that the meeting has not been lawfully called or
convened. Unless provided otherwise in this Declaration, any action of the
Regular Trustees may be taken at a meeting by vote of a majority of the
Regular Trustees present (whether in person or by telephone) and eligible to
vote with respect to such matter; provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Regular Trustees.
SECTION 5.6 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
his or her power for the purpose of executing any registration statement or
amendment thereto or other document or schedule filed with the Commission or
making any other governmental filing (including, without limitation to filings
referred to in Section 3.11).
(b) The Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular
Trustees may deem expedient, to the extent such delegation is not prohibited
by applicable law or contrary to the provisions of the Trust, as set forth
herein.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive periodic distributions, redemption
payments and liquidation distributions in accordance with the applicable terms
of the relevant Holder's Securities ("Distributions"). Distributions shall
be made to the Holders of Preferred Securities and Common Securities in
accordance with the terms of the Securities as set forth in Exhibits B and C
hereto. If and to the extent that SunAmerica makes a payment of interest
(including Compounded Interest (as defined in the Indenture)), premium and
principal on the Debentures held by the Property Trustee (the amount of any
such payment being a "Payment Amount"), the Property Trustee shall and is
directed to promptly make a Distribution of the Payment Amount to Holders in
accordance with the terms of the Securities as set forth in Exhibits B and C
hereto.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall issue on behalf of the Trust
securities in fully registered form representing undivided beneficial
interests in the assets of the Trust in accordance with Section 7.1(b).
(b) The Regular Trustees shall issue on behalf of the Trust
one class of preferred securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in Exhibit B (the
"Preferred Securities") which terms are incorporated by reference in, and made
a part of, this Declaration as if specifically set forth herein, and one class
of common securities representing undivided beneficial interests in the assets
of the Trust having such terms as are set forth in Exhibit C (the "Common
Securities") which terms are incorporated by reference in, and made a part of,
this Declaration as if specifically set forth herein. The Trust shall have no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.(5)
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(5) See preceding footnotes for a description of certain changes which may
be needed (including an expansion of the definitions of "Preferred Securities"
and "Common Securities" in this paragraph 7.1(b)) if an over-allotment option
is granted to Underwriters.
(c) The Certificates shall be signed on behalf of the Trust by
the Regular Trustees (or if there are more than two Regular Trustees by any
two of the Regular Trustees). Such signatures may be the manual or facsimile
signatures of the present or any future Regular Trustee. Typographical and
other minor errors or defects in any such reproduction of any such signature
shall not affect the validity of any Certificate. In case any Regular Trustee
of the Trust who shall have signed any of the Certificates shall cease to be
such Regular Trustee before the Certificate so signed shall be delivered by
the Trust, such Certificate nevertheless may be delivered as though the person
who signed such Certificate had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons as, at the
actual date of the execution of such Certificate, shall be the Regular
Trustees of the Trust, although at the date of the execution and delivery of
the Declaration any such person was not such a Regular Trustee. Certificates
shall be printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Regular Trustees, as evidenced by
their execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Securities may be listed, or to
conform to usage. Each Certificate shall be countersigned by the manual or
facsimile signature of an authorized signatory of the Person acting as
registrar and transfer agent for the Securities, which shall initially be the
Property Trustee.
(d) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(f) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by this Declaration.
(g) Upon issuance of the Securities as provided in this
Declaration, the Regular Trustees on behalf of the Trust shall return to
SunAmerica the $10 constituting initial trust assets as set forth in the
Original Declaration.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
This Declaration and the Trust shall terminate and be of no
further force or effect when:
(i) all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall
have been paid to the Holders of Securities in accordance with the
terms of the Securities; or
(ii) all of the Debentures shall have been distributed to the
Holders of Securities in exchange for all of the Securities in
accordance with the terms of the Securities; or
(iii) upon the expiration of the term of the Trust as set forth
in Section 3.15,
and a certificate of cancellation is filed by the Trustees with the Secretary
of State of the State of Delaware. The Trustees shall so file such a
certificate as soon as practicable after the occurrence of an event referred
to in this Section 8.1.
The provisions of Sections 3.10 and 4.2 and Article X shall
survive the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration.
Any transfer or purported transfer of any Security not made in accordance with
this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be
freely transferable.
(c) Subject to this Article IX, SunAmerica and any Related
Party may only transfer Common Securities to SunAmerica or a Related Party;
provided that any such transfer shall be subject to the condition that the
transferor shall have obtained (1) either a ruling from the Internal Revenue
Service or an unqualified written opinion addressed to the Trust and delivered
to the Trustees of nationally recognized independent tax counsel experienced in
such matters to the effect that such transfer will not (i) cause the Trust to
be treated as issuing a class of interests in the Trust differing from the
class of interests represented by the Common Securities originally issued to
SunAmerica, (ii) result in the Trust acquiring or disposing of, or being
deemed to have acquired or disposed of, an asset, or (iii) result in or cause
the Trust to be treated as anything other than a grantor trust for United
States federal income tax purposes and (2) an unqualified written opinion
addressed to the Trust and delivered to the Trustees of a nationally
recognized independent counsel experienced in such matters that such transfer
will not cause the Trust to be an Investment Company or controlled by an
Investment Company.
SECTION 9.2 Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges which may be
imposed in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to
be issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees
duly executed by the Holder or such Holder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer shall be
canceled by the Regular Trustees. A transferee of a Certificate shall be
entitled to the rights and subject to the obligations of a Holder hereunder
upon the receipt by such transferee of a Certificate. By acceptance of a
Certificate, each transferee shall be deemed to have agreed to be bound by
this Declaration.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole holder
of such Certificate and of the Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to
or interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trustees shall have
actual or other notice thereof.
SECTION 9.4 Book Entry Interests.
Unless otherwise specified in the terms of the Preferred
Securities, the Preferred Securities Certificates, on original issuance, will
be issued in the form of one or more, fully registered, global Preferred
Security Certificates (each a "Global Certificate"), to be delivered to DTC,
the initial Clearing Agency, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the
Trust in the name of Cede & Co., the nominee of DTC, and no Preferred Security
Beneficial Owner will receive a definitive Preferred Security Certificate
representing such Preferred Security Beneficial Owner's interests in such
Global Certificates, except as provided in Section 9.7. Unless and until
definitive, fully registered Preferred Security Certificates (the "Definitive
Preferred Security Certificates") have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7:
(i) the provisions of this Section 9.4 shall be in full force
and effect;
(ii) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including
the payment of Distributions on the Global Certificates and receiving
approvals, votes or consents hereunder) as the Holder of the
Preferred Securities and the sole holder of the Global Certificates
and, except as set forth herein or in Rule 3a-7 with respect to the
Property Trustee, shall have no obligation to the Preferred Security
Beneficial Owners;
(iii) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the
provisions of this Section 9.4 shall control; and
(iv) the rights of the Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency and/or
the Clearing Agency Participants. DTC will make book entry transfers
among the Clearing Agency Participants and receive and transmit
payments of Distributions on the Global Certificates to such Clearing
Agency Participants.
SECTION 9.5 Notices to Holders of Certificates.
Whenever a notice or other communication to the Holders is
required to be given under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued pursuant to Section
9.7, the relevant Trustees shall give such notices and communications to the
Holders and, with respect to any Preferred Security Certificate registered in
the name of a Clearing Agency or the nominee of a Clearing Agency, the
Trustees shall, except as set forth herein or in Rule 3a-7 with respect to the
Property Trustee, have no notice obligations to the Preferred Security
Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency
with respect to the Preferred Securities.
SECTION 9.7 Definitive Preferred Securities Certificates.
If (i) a Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 9.6 or (ii) the Regular Trustees elect after consultation
with the Sponsor to terminate the book entry system through the Clearing
Agency with respect to the Preferred Securities, then (x) Definitive Preferred
Security Certificates shall be prepared by the Regular Trustees on behalf of
the Trust with respect to such Preferred Securities and (y) upon surrender of
the Global Certificates by the Clearing Agency, accompanied by registration
instructions, the Regular Trustees shall cause definitive Preferred Security
Certificates to be delivered to Preferred Security Beneficial Owners in
accordance with the instructions of the Clearing Agency. Neither the Trustees
nor the Trust shall be liable for any delay in delivery of such instructions
and each of them may conclusively rely on and shall be protected in relying
on, such instructions. The Definitive Preferred Security Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as evidenced by their execution
thereof, and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements as the Regular Trustees may
deem appropriate, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which Preferred Securities may be listed, or to conform to
usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and (b)
there shall be delivered to the Regular Trustees such security or indemnity as
may be required by them to keep each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a bona fide
purchaser, any two Regular Trustees on behalf of the Trust shall execute and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 9.8, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 10.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this Declaration or by
law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's gross
negligence (or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders of Securities might properly be
paid.
(c) Pursuant to Section 3803(a) of the Business Trust Act,
the Holders of Securities, in their capacities as Holders, shall be entitled
to the same limitation of liability that is extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
SECTION 10.2 Indemnification.
(a) To the fullest extent permitted by applicable law, the
Sponsor shall indemnify and hold harmless each Indemnified Person from and
against any loss, damage or claim incurred by such Indemnified Person by
reason of any act or omission performed or omitted by such Indemnified Person
in good faith on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration, except that no Indemnified Person
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of gross negligence (or, in the
case of the Property Trustee, negligence) or willful misconduct with respect
to such acts or omissions.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Sponsor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Sponsor of an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 10.2(a).
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail,
each transaction of the Trust. The books of account shall be maintained on
the accrual method of accounting, in accordance with generally accepted
accounting principles, consistently applied. The Trust shall use the accrual
method of accounting for United States federal income tax purposes. The books
and records of the Trust, together with a copy of this Declaration and a
certified copy of the Certificate of Trust, or any amendment thereto, shall at
all times be maintained at the principal office of the Trust and shall be open
for inspection for any examination by any Holder or its duly authorized
representative for any purpose reasonably related to its interest in the Trust
during normal business hours.
(b) The Regular Trustees shall, as soon as available after the
end of each Fiscal Year of the Trust, cause to be prepared and mailed to each
Holder of Securities unaudited financial statements of the Trust for such
Fiscal Year, prepared in accordance with generally accepted accounting
principles; provided that if the Trust is required to comply with the periodic
reporting requirements of Sections 13(a) or 15(d) of the Exchange Act, such
financial statements for such Fiscal Year shall be examined and reported on by
a firm of independent certified public accountants selected by the Regular
Trustees (which firm may be the firm used by the Sponsor).
(c) The Regular Trustees shall cause to be prepared and mailed
to each Holder of Securities, an annual United States federal income tax
information statement, on such form as is required by the Code, containing
such information with regard to the Securities held by each Holder as is
required by the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the Regular
Trustees shall endeavor to deliver all such statements within 30 days after
the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on such form as is required by the Code, and any other annual
income tax returns required to be filed by the Regular Trustees on behalf of
the Trust with any state or local taxing authority, such returns to be filed
as soon as practicable after the end of each Fiscal Year of the Trust.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Account and no other funds from the Trust shall be
deposited in the Property Account. The sole signatories for such accounts
shall be designated by the Regular Trustees; provided, however, that the
Property Trustee shall designate the sole signatories for the Property Account.
SECTION 11.4 Withholding.
The Trust and the Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust
shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably
be requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Trust shall file required forms
with applicable jurisdictions and, unless an exemption from withholding is
properly established by a Holder, shall remit amounts withheld with respect to
the Holder to applicable jurisdictions. To the extent that the Trust is
required to withhold and pay over any amounts to any authority with respect to
distributions or allocations to any Holder, the amount withheld shall be
deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claimed overwithholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount to be withheld was
not withheld from a Distribution, the Trust may reduce subsequent Distributions
by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended by, and
only by, a written instrument executed by a majority of the Regular Trustees;
provided, however, that (i) no amendment to this Declaration shall be made
unless the Regular Trustees shall have obtained (A) either a ruling from the
Internal Revenue Service or a written unqualified opinion of nationally
recognized independent tax counsel experienced in such matters to the effect
that such amendment will not cause the Trust to be classified for United
States federal income tax purposes as an association taxable as a corporation
or a partnership and to the effect that the Trust will continue to be treated
as a grantor trust for purposes of United States federal income taxation and
(B) a written unqualified opinion of nationally recognized independent counsel
experienced in such matters to the effect that such amendment will not cause
the Trust to be an Investment Company which is required to be registered under
the Investment Company Act, (ii) at such time after the Trust has issued any
Securities which remain outstanding, any amendment which would adversely
affect the rights, privileges or preferences of any Holder of Securities may be
effected only with such additional requirements as may be set forth in the
terms of such Securities, (iii) Section 4.2, Section 9.1(c) and this Section
12.1 shall not be amended without the consent of all of the Holders of the
Securities, (iv) no amendment which adversely affects the rights, powers and
privileges of the Property Trustee shall be made without the consent of the
Property Trustee, (v) Article IV shall not be amended without the consent of
the Sponsor, (vi) the rights of Holders of Common Securities under Article V
to increase or decrease the number of, and to appoint, replace or remove,
Trustees (other than a Special Regular Trustee) shall not be amended without
the consent of each Holder of Common Securities and (vii) the rights of
Holders of Preferred Securities to appoint or remove a Special Regular Trustee
shall not be amended without the consent of each Holder of Preferred
Securities.
(b) Notwithstanding Section 12.2(a)(ii), this Declaration may
be amended without the consent of the Holders of the Securities to (i) cure
any ambiguity, (ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision of this
Declaration, (iii) to add to the covenants, restrictions or obligations of the
Sponsor, and (iv) to conform to any changes in Rule 3a-7 or any change in
interpretation or application of Rule 3a-7 by the Commission, which amendment
does not adversely affect the rights, preferences or privileges of the Holders.
SECTION 12.2 Meetings of the Holders of Securities;
Action by Written Consent.
(a) Meetings of the Holders of Preferred Securities and/or
Common Securities may be called at any time by the Regular Trustees (or as
provided in the terms of the Securities) to consider and act on any matter on
which Holders of such class of Securities are entitled to act under the terms
of this Declaration, the terms of the Securities or the rules of any stock
exchange on which the Preferred Securities are listed or admitted for trading.
The Regular Trustees shall call a meeting of Holders of Preferred Securities
or Common Securities, if directed to do so by Holders of at least 10% in
liquidation amount of such class of Securities. Such direction shall be given
by delivering to the Regular Trustees one or more calls in a writing stating
that the signing Holders of Securities wish to call a meeting and indicating
the general or specific purpose for which the meeting is to be called. Any
Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those specified Certificates shall be counted for purposes of
determining whether the required percentage set forth in the second sentence
of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provision shall apply to meetings of Holders of
Securities:
(i) Notice of any such meeting shall be given by mail to all
the Holders of Securities having a right to vote thereat not less
than 7 days nor more than 60 days prior to the date of such meeting.
Whenever a vote, consent or approval of the Holders of Securities is
permitted or required under this Declaration or the rules of any
stock exchange on which the Preferred Securities are listed or
admitted for trading, such vote, consent or approval may be given at
a meeting of the Holders of Securities. Any action that may be taken
at a meeting of the Holders of Securities may be taken without a
meeting if a consent in writing setting forth the action so taken is
signed by Holders of Securities owning not less than the minimum
aggregate liquidation amount of Securities that would be necessary to
authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting.
Prompt notice of the taking of action without a meeting shall be given
to the Holders of Securities entitled to vote who have not consented
in writing. The Regular Trustees may specify that any written ballot
submitted to the Holders of Securities for the purpose of taking any
action without a meeting shall be returned to the Trust within the
time specified by the Regular Trustees.
(ii) Each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of a Security is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after
the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the
pleasure of the Holder of the Security executing it. Except as
otherwise provided herein or in the terms of the Securities, all
matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as if
the Trust were a Delaware corporation and the Holders of the
Securities were stockholders of a Delaware corporation.
(iii) Each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate.
(iv) Unless otherwise provided in the Business Trust Act, this
Declaration or the rules of any stock exchange on which the Preferred
Securities are then listed or admitted for trading, the Regular
Trustees, in their sole discretion, shall establish all other
provisions relating to meetings of Holders of Securities, including
notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any Holders of Securities, waiver of any
such notice, action by consent without a meeting, the establishment
of a record date, quorum requirements, voting in person or by proxy
or any other matter with respect to the exercise of any such right to
vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property
Trustee.
(a) The Trustee which acts as initial Property Trustee
represents and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Property Trustee represents and warrants to
the Trust and the Sponsor at the time of the Successor Property Trustee's
acceptance of its appointment as Property Trustee that:
(i) The Property Trustee is a banking corporation with
trust powers, duly organized, validly existing and in good
standing under the laws of the State of its incorporation, with
trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this
Declaration.
(ii) The execution, delivery and performance by the
Property Trustee of this Declaration has been duly authorized
by all necessary corporate action on the part of the Property
Trustee. The Declaration has been duly executed and delivered
by the Property Trustee, and constitutes a legal, valid and
binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law).
(iii) The execution, delivery and performance of this
Declaration by the Property Trustee does not conflict with or
constitute a breach of the Charter or By-laws of the Property
Trustee.
(iv) No consent, approval or authorization of, or
registration with or notice to, any banking authority which
supervises or regulates the Property Trustee is required for
the execution, delivery or performance by the Property Trustee,
of this Declaration.
(v) The Property Trustee satisfies the qualifications
set forth in Section 5.1(c).
(b) The Trustee which acts as initial Delaware Trustee
represents and warrants to the Trust and the Sponsor at the date of this
Declaration, and each Successor Delaware Trustee represents and warrants to
the Trust and the Sponsor at the time of the Successor Delaware Trustee's
acceptance of its appointment as Delaware Trustee, that it satisfies the
qualifications set forth in Section 5.1(a)(3).
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as
the Regular Trustees on behalf of the Trust may give notice of to the
Holders of the Securities):
SunAmerica Capital Trust I
c/o SunAmerica Inc.
1 SunAmerica Center
Los Angeles, California 90067-6022
Attention: James R. Belardi
Scott H. Richland
Scott L. Robinson
Trustees
Facsimile No: (310) 772-6635
(b) if given to the Property Trustee, at the mailing address
of the Property Trustee set forth below (or such other address as the
Property Trustee may give notice of to the Holders of the Securities):
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Trustee
Administration
Facsimile No: (212) 815-5999
(c) if given to the Delaware Trustee, at the mailing address
of the Delaware Trustee set forth below (or such other address as the
Delaware Trustee may give notice of to the Holders of the Securities):
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address
as the Holder of the Common Securities may give notice to the Trust):
SunAmerica Inc.
1 SunAmerica Center
Los Angeles, California 90067-6022
Attention: Corporate Secretary
Facsimile No: (310) 772-6635
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust.
A copy of any notice to the Property Trustee or the Delaware
Trustee shall also be sent to the Trust. All notices shall be deemed to have
been given, when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid except that if a notice or other
document is refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
SECTION 14.2 Undertaking for Costs.
All parties to this Declaration agree, and each Holder of any
Securities by his or her acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Declaration, or in any suit against the
Property Trustee for any action taken or omitted by it as Property Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 14.2 shall not apply to any suit instituted by the Property Trustee,
to any suit instituted by any Holder of Preferred Securities, or group of
Holders of Preferred Securities, holding more than 10% in aggregate
liquidation amount of the outstanding Preferred Securities, or to any suit
instituted by any Holder of Preferred Securities for the enforcement of the
payment of the principal of (or premium, if any) or interest on the
Debentures, on or after the respective due dates expressed in such Debentures.
SECTION 14.3 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 14.5 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.6 Counterparts.
This Declaration may contain more than one counterpart of the
signature pages and this Declaration may be executed by the affixing of the
signature of the Sponsor and each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of the
signers had signed a single signature page.
SECTION 14.7 Intention of the Parties.
It is the intention of the parties hereto that the Trust not be
classified for United States federal income tax purposes as an association
taxable as a corporation or partnership but that the Trust be treated as a
grantor trust for United States federal income tax purposes. The provisions
of this Declaration shall be interpreted to further this intention of the
parties.
SECTION 14.8 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
SunAmerica Inc.,
as Sponsor
By:______________________________
Name:
Title:
________________________________
James R. Belardi,
as Trustee
________________________________
Scott L. Robinson,
as Trustee
________________________________
Scott H. Richland,
as Trustee
The Bank of New York,
as Trustee
By:______________________________
Name:
Title:
The Bank of New York (Delaware),
as Trustee
By:______________________________
Name:
Title:
There personally appeared before me [___________] (on behalf of
SunAmerica Inc.) and James R. Belardi, Scott H. Richland, Scott L. Robinson
who acknowledged the foregoing instrument to be his or its free act and deed
and the free act and deed of SunAmerica Inc. and the Trustees of SunAmerica
Capital Trust [_].
Before me,
______________________________
Notary Public
My Commission Expires: __________________________________
There personally appeared before me __________________ (on
behalf of The Bank of New York, as Trustee) who acknowledged the foregoing
instrument to be his or its free act and deed and the free act and deed of The
Bank of New York, as Trustee.
Before me,
______________________________
Notary Public
My Commission Expires: __________________________________
There personally appeared before me __________________ (on
behalf of The Bank of New York (Delaware), as Trustee) who acknowledged the
foregoing instrument to be his or its free act and deed and the free act and
deed of The Bank of New York (Delaware), as Trustee.
Before me,
______________________________
Notary Public
My Commission Expires: __________________________________
EXHIBIT A
CERTIFICATE OF TRUST
OF
SUNAMERICA CAPITAL TRUST [_]
THIS Certificate of Trust of SunAmerica Capital Trust [_] (the
"Trust"), dated August 31, 1995, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. Code Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby
is SunAmerica Capital Trust [_].
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of
Delaware is The Bank of New York (Delaware), a Delaware banking corporation,
White Clay Center, Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of
the Trust, have executed this Certificate of Trust as of the date first above
written.
The Bank of New York (Delaware),
as Trustee
By:__________________________________
Name:
Title:
The Bank of New York,
as Trustee
By:__________________________________
Name:
Title:
_____________________________________
James R. Belardi,
as Trustee
_____________________________________
Scott H. Richland,
as Trustee
_____________________________________
Scott L. Robinson,
as Trustee
EXHIBIT B
TERMS OF
PREFERRED SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration
of Trust of SunAmerica Capital Trust [_] dated as of [___________], 199[_] (as
amended from time to time, the "Declaration"), the designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth below (each capitalized term used but not
defined herein having the meaning set forth in the Declaration):
1. Designation and Number.(6) Preferred Securities of the
Trust with an aggregate liquidation amount in the assets of the Trust of
[___________________________________] Dollars ($[_________]) and a liquidation
amount in the assets of the Trust of $25 per Preferred Security, are hereby
designated as "[____]% [____________] Preferred Securities". The Preferred
Security Certificates evidencing the Preferred Securities shall be
substantially in the form attached hereto as Annex I, with such changes and
additions thereto or deletions therefrom as may be required by ordinary usage,
custom or practice or to conform to the rules of any stock exchange on which
the Preferred Securities are listed. In connection with the issuance of and
initial sale of these Preferred Securities and the Common Securities,
SunAmerica will deposit in the Trust, and the Trust will purchase,
respectively, as trust assets Debentures of SunAmerica having an aggregate
principal amount equal to $[_________], and bearing interest at an annual rate
equal to the annual Distribution rate on the Preferred Securities and Common
Securities and having payment and redemption provisions which correspond to
the payment and redemption provisions of the Preferred Securities and
Common Securities.
- ----------
(6) See preceding footnotes for a discussion of changes needed if an
over-allotment option is granted to Underwriters.
2. Distributions. (a) Periodic distributions payable on each
Preferred Security will be fixed at a rate per annum of [____]% (the "Coupon
Rate") of the stated liquidation amount of $25 per Preferred Security.
Distributions in arrears for more than one quarter will bear interest at the
rate per annum of [____]% thereof (to the extent permitted by law), compounded
quarterly. The term "Distributions" as used in these terms means such
periodic cash distributions and any such interest payable unless otherwise
stated. A Distribution will be made by the Property Trustee only to the
extent that interest payments are made in respect of the Debentures held by
the Property Trustee. The amount of Distributions payable for any period
will be computed for any full quarterly Distribution period on the basis of
a 360-day year of twelve 30-day months, and for any period shorter than a
full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days
elapsed in such a 30-day month.
(b) Distributions on the Preferred Securities will be
cumulative, will accrue from [____________], 199[_] and will be payable
quarterly in arrears, on March 30, June 30, September 30 and December 30 of
each year, commencing on [____________], 199[_], except as otherwise described
below, but only if and to the extent that interest payments are made in
respect of the Debentures held by the Property Trustee. So long as SunAmerica
shall not be in default in the payment of interest on the Debentures,
SunAmerica has the right under the Indenture for the Debentures to defer
payments of interest by extending the interest payment period from time to
time on the Debentures for a period not exceeding 20 consecutive quarterly
interest periods (each, an "Extension Period") and, as a consequence,
quarterly Distributions will continue to accrue with interest thereon (to
the extent permitted by applicable law) at the rate of [____]% per annum,
compounded quarterly during any such Extension Period. Prior to the
termination of any such Extension Period, SunAmerica may further extend
such Extension Period; provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 20
consecutive quarterly interest periods. Upon the termination of any
Extension Period and the payment of all amounts then due, SunAmerica may
commence a new Extension Period, subject to the above requirements.
Payments of accrued Distributions will be payable to Holders of Preferred
Securities as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period.
(c) Distributions on the Preferred Securities will be payable
promptly by the Property Trustee (or other Paying Agent) upon receipt of
immediately available funds to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates, which will be the March
15, June 15, September 15 and December 15 prior to the relevant Distribution
date, which record and payment dates correspond to the record and interest
payment dates on the Debentures. Distributions payable on any Preferred
Securities that are not punctually paid on any Distribution payment date as a
result of SunAmerica having failed to make the corresponding interest payment
on the Debentures will forthwith cease to be payable to the person in whose
name such Preferred Security is registered on the relevant record date, and
such defaulted Distribution will instead be payable to the person in whose
name such Preferred Security is registered on the special record date
established by the Regular Trustees, which record date shall correspond to the
special record date or other specified date determined in accordance with the
Indenture; provided, however, that Distributions shall not be considered
payable on any Distribution payment date falling within an Extension Period
unless SunAmerica has elected to make a full or partial payment of interest
accrued on the Debentures on such Distribution payment date. Subject to any
applicable laws and regulations and the provisions of the Declaration, each
payment in respect of the Preferred Securities will be made as described
paragraph 9 hereof. If any date on which Distributions are payable on the
Preferred Securities is not a Business Day, then payment of the Distribution
payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.
(d) All Distributions paid with respect to the Preferred
Securities and the Common Securities will be paid Pro Rata to the Holders
thereof entitled thereto. If an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to Distributions.
(e) In the event that there is any money or other property
held by or for the Trust that is not accounted for under the Declaration, such
money or property shall be distributed Pro Rata among the Holders of the
Preferred Securities and Common Securities.
3. Liquidation Distribution Upon Dissolution. In the event of
any voluntary or involuntary dissolution, winding-up or termination of the
Trust, the Holders of the Preferred Securities and Common Securities at the
date of the dissolution, winding-up or termination, as the case may be, will
be entitled to receive Pro Rata solely out of the assets of the Trust
available for distribution to Holders of Preferred Securities and Common
Securities after satisfaction of liabilities to creditors, an amount equal to
the aggregate of the stated liquidation amount of $25 per Preferred Security
and Common Security plus accrued and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, and after
satisfaction of liabilities to creditors, Debentures in an aggregate principal
amount equal to the aggregate stated liquidation amount of such Preferred
Securities and Common Securities and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on, such Preferred
Securities and Common Securities, shall be distributed Pro Rata to the Holders
of the Preferred Securities and Common Securities in exchange for such
Securities.
If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Preferred Securities and Common Securities shall
be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive
Liquidation Distributions upon any such dissolution Pro Rata with Holders of
Preferred Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to such Liquidation Distribution.
4. Redemption and Distribution of Debentures. The Preferred
Securities and Common Securities may only be redeemed if Debentures having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and Common Securities are repaid, redeemed or distributed
as set forth below:
(a) Upon the repayment of the Debentures, in whole or in
part, whether at maturity, upon redemption at any time or from time to time on
or after [___________], 199[_], the proceeds of such repayment will be promptly
applied to redeem Pro Rata Preferred Securities and Common Securities having
an aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed, upon not less than 30 nor more than 60 days'
notice, at a redemption price of $25 per Preferred and Common Security plus an
amount equal to accrued and unpaid Distributions thereon to the date of
redemption, payable in cash (the "Redemption Price"). The date of any such
repayment or redemption of Preferred Securities and Common Securities shall be
established to coincide with the repayment or redemption date of the
Debentures.
(b) If fewer than all the outstanding Preferred Securities
and Common Securities are to be so redeemed, the Preferred Securities and the
Common Securities will be redeemed Pro Rata and the Preferred Securities to be
redeemed will be redeemed as described in paragraph 4(f)(ii) below. If a
partial redemption would result in the delisting of the Preferred Securities
by any national securities exchange or other organization on which the
Preferred Securities are then listed, SunAmerica pursuant to the Indenture
will only redeem Debentures in whole and, as a result, the Trust may only
redeem the Preferred Securities in whole.
(c) If, at any time, a Tax Event or an Investment Company
Event (each as hereinafter defined, and each a "Special Event") shall occur
and be continuing, the Regular Trustees shall, unless the Debentures are
redeemed in the limited circumstances described below, dissolve the Trust and,
after satisfaction of creditors, cause Debentures held by the Property Trustee
having an aggregate principal amount equal to the aggregate stated liquidation
amount of and accrued and unpaid interest equal to accrued and unpaid
Distributions on, and having the same record date for payment as the Preferred
Securities and Common Securities, to be distributed to the Holders of the
Preferred Securities and Common Securities on a Pro Rata basis in liquidation
of such Holders' interests in the Trust, within 90 days following the
occurrence of such Special Event; provided, however, that in the case of the
occurrence of a Tax Event, as a condition of such dissolution and
distribution, the Regular Trustees shall have received an opinion of a
nationally recognized independent tax counsel experienced in such matters (a
"No Recognition Opinion"), which opinion may rely on any then applicable
published revenue ruling of the Internal Revenue Service, to the effect that
the Holders of the Preferred Securities will not recognize any gain or loss
for United States federal income tax purposes as a result of the dissolution
of the Trust and distribution of Debentures; and provided, further, that, if
and as long as at the time there is available to the Trust the opportunity to
eliminate, within such 90 day period, the Special Event by taking some
ministerial action, such as filing a form or making an election, or pursuing
some other similar reasonable measure that has no adverse effect on the Trust,
SunAmerica or the Holders of the Preferred Securities ("Ministerial Action"),
the Trust will pursue such measure in lieu of dissolution.
If in the case of the occurrence of a Tax Event, (i) the
Regular Trustees have received an opinion (a "Redemption Tax Opinion") of
nationally recognized independent tax counsel experienced in such matters
that, as a result of a Tax Event, there is more than an insubstantial risk
that SunAmerica would be precluded from deducting the interest on the
Debentures for United States federal income tax purposes even if the
Debentures were distributed to the Holders of Preferred Securities and Common
Securities in liquidation of such Holder's interest in the Trust as described
in this paragraph 4(c) or (ii) the Regular Trustees shall have been informed
by such tax counsel that a No Recognition Opinion cannot be delivered to the
Trust, SunAmerica shall have the right at any time, upon not less than 30 nor
more than 60 days' notice, to redeem the Debentures in whole or in part for
cash at the Redemption Price within 90 days following the occurrence of such
Tax Event, and promptly following such redemption Preferred Securities and
Common Securities with an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed will be redeemed by the Trust
at the Redemption Price on a Pro Rata basis; provided, however, that, if at
the time there is available to SunAmerica or the Regular Trustees on behalf of
the Trust the opportunity to eliminate, within such 90 day period, the Tax
Event by taking some Ministerial Action, SunAmerica or the Regular Trustees on
behalf of the Trust will pursue such measure in lieu of redemption and;
provided, further, that SunAmerica shall have no right to redeem the
Debentures while the Regular Trustees on behalf of the Trust are pursuing
such Ministerial Action. The Common Securities will be redeemed Pro Rata
with the Preferred Securities, except that if an Event of Default under the
Indenture has occurred and is continuing, the Preferred Securities will
have a priority over the Common Securities with respect to payment of the
Redemption Price.
"Tax Event" means that the Regular Trustees shall have obtained
an opinion of nationally recognized independent tax counsel experienced in
such matters (a "Dissolution Tax Opinion") to the effect that on or after
[____________], 199[_] as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, (b) any amendment to, or change in, an
interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position or
(d) any action taken by any governmental agency or regulatory authority, which
amendment or change is enacted, promulgated, issued or announced or which
interpretation or pronouncement is issued or announced or which action is
taken, in each case on or after [____________], 199[_], there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the
date thereof, subject to United States federal income tax with respect to
income accrued or received on the Debentures, (ii) the Trust is, or will be
within 90 days of the date thereof, subject to more than a de minimis amount
of taxes, duties or other governmental charges or (iii) interest payable by
SunAmerica to the Trust on the Debentures is not, or within 90 days of the
date thereof will not be, deductible by SunAmerica for United States federal
income tax purposes.
"Investment Company Event" means that the Regular Trustees
shall have received an opinion of nationally recognized independent counsel
experienced in practice under the Investment Company Act that, as a result of
the occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by any legislative body, court,
governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or will be
considered an Investment Company which is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes effective on or
after [____________], 199[_].
On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Preferred Securities will no longer be
deemed to be outstanding and (ii) certificates representing Preferred
Securities will be deemed to represent beneficial interests in the Debentures
having an aggregate principal amount equal to the stated liquidation amount
of, and bearing accrued and unpaid interest equal to accrued and unpaid
Distributions on, such Preferred Securities until such certificates are
presented to SunAmerica or its agent for transfer or reissuance.
(d) The Trust may not redeem fewer than all the outstanding
Preferred Securities unless all accrued and unpaid Distributions have been
paid on all Preferred Securities for all quarterly Distribution periods
terminating on or prior to the date of redemption.
(e) If Debentures are distributed to Holders of the Preferred
Securities, SunAmerica, pursuant to the terms of the Indenture, will use its
best efforts to have the Debentures listed on the New York Stock Exchange or
on such other exchange as the Preferred Securities were listed immediately
prior to the distribution of the Debentures.
(f) (i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for, the Preferred Securities and
Common Securities (a "Redemption/Distribution Notice") will be given by the
Regular Trustees on behalf of the Trust by mail to each Holder of Preferred
Securities and Common Securities to be redeemed or exchanged not less than 30
nor more than 60 days prior to the date fixed for redemption or exchange
thereof. For purposes of the calculation of the date of redemption or
exchange and the dates on which notices are given pursuant to this paragraph
(f)(i), a Redemption/Distribution Notice shall be deemed to be given on the
day such notice is first mailed by first-class mail, postage prepaid, to
Holders of Preferred Securities and Common Securities. Each Redemption/
Distribution Notice shall be addressed to the Holders of Preferred Securities
and Common Securities at the address of each such Holder appearing in the
books and records of the Trust. No defect in the Redemption/Distribution
Notice or in the mailing of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange proceedings with respect to
any other Holder.
(ii) In the event that fewer than all the outstanding
Preferred Securities are to be redeemed, the Preferred Securities to be
redeemed will be redeemed Pro Rata from each Holder of Preferred Securities,
it being understood that, in respect of Preferred Securities registered in the
name of and held of record by DTC (or successor Clearing Agency) or any other
nominee, the distribution of the proceeds of such redemption will be made to
each Clearing Agency Participant (or person on whose behalf such nominee holds
such securities) in accordance with the procedures applied by such agency or
nominee.
(iii) If the Trust gives a Redemption/ Distribution Notice in
respect of a redemption of Preferred Securities as provided in this paragraph
4 (which notice will be irrevocable) then immediately prior to the close of
business on the redemption date, provided that SunAmerica has paid to the
Property Trustee in immediately available funds a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures,
Distributions will cease to accrue on the Preferred Securities called for
redemption, such Preferred Securities will no longer be deemed to be
outstanding and all rights of Holders of such Preferred Securities so called
for redemption will cease, except the right of the Holders of such Preferred
Securities to receive the Redemption Price, but without interest on such
Redemption Price. Neither the Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Preferred Securities
which have been so called for redemption. If any date fixed for redemption of
Preferred Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date fixed for redemption.
If payment of the Redemption Price in respect of Preferred Securities is
improperly withheld or refused and not paid either by the Property Trustee or
by SunAmerica pursuant to the Preferred Securities Guarantee, Distributions on
such Preferred Securities will continue to accrue, from the original
redemption date to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating
the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to the Holders of the Preferred
Securities.
(v) Upon the date of dissolution of the Trust and distribution
of Debentures as a result of the occurrence of a Special Event, Preferred
Security Certificates shall be deemed to represent beneficial interests in the
Debentures so distributed, and the Preferred Securities will no longer be
deemed outstanding and may be canceled by the Regular Trustees. The
Debentures so distributed shall have an aggregate principal amount equal to
the aggregate liquidation amount of the Preferred Securities so distributed.
(vi) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), SunAmerica or any
of its subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
5. Voting Rights. (a) Except as provided under paragraph
5(b) below and as otherwise required by law and the Declaration, the Holders
of the Preferred Securities will have no voting rights.
(b) If (i) the Trust fails to make Distributions in full on
the Preferred Securities for 6 consecutive quarterly Distribution periods; or
(ii) an Event of Default occurs and is continuing (each, an "Appointment
Event"), then the Holders of the Preferred Securities, acting as a single
class, will be entitled by the vote of Holders of Preferred Securities
representing a Majority in liquidation amount of the Preferred Securities to
appoint a Special Regular Trustee in accordance with paragraph 5.2(a)(ii)(B)
of the Declaration. Any Holder of Preferred Securities (other than the
Sponsor or any Affiliate of the Sponsor) will have the right to nominate any
Person to be appointed as Special Regular Trustee. For purposes of determining
whether the Trust has failed to pay Distributions in full for 6 consecutive
quarterly Distribution periods, Distributions shall be deemed to remain in
arrears, notwithstanding any payments in respect thereof, until full
cumulative Distributions have been or contemporaneously are paid with respect
to all quarterly Distribution periods terminating on or prior to the date of
payment of such cumulative Distributions. Not later than 30 days after such
right to appoint a Special Regular Trustee arises, the Regular Trustees will
convene a meeting for the purpose of appointing a Special Regular Trustee. If
the Regular Trustees fail to convene such meeting within such 30-day period,
the Holders of Preferred Securities representing 10% in liquidation amount of
the outstanding Preferred Securities will be entitled to convene such meeting
in accordance with Section 12.2 of the Declaration. The record date for such
meeting will be the close of business on the Business Day next preceding the
day on which notice of the meeting is sent to Holders of Preferred Securities.
The provisions of the Declaration relating to the convening and conduct of the
meetings of the Holders will apply with respect to any such meeting. If, at
any such meeting, Holders of less than a Majority in liquidation amount of
Preferred Securities entitled to vote for the appointment of a Special Regular
Trustee vote for such appointment, no Special Regular Trustee shall be
appointed. Any Special Regular Trustee may be removed without cause at any
time by the Holders of Preferred Securities representing a Majority in
liquidation amount of the Preferred Securities in accordance with Section
5.2(a)(ii)(B) of the Declaration. The Holders of 10% in liquidation amount of
the Preferred Securities will be entitled to convene such a meeting in
accordance with Section 12.2 of the Declaration. The record date for such
meeting will be the close of business on the Business Day next preceding the
day on which notice of the meeting is sent to Holders of Preferred Securities.
Any Special Regular Trustee appointed shall cease to be a Special Regular
Trustee as provided in Section 5.2(c) of the Declaration. Notwithstanding the
appointment of any such Special Regular Trustee, SunAmerica shall retain all
rights under the Indenture, including the right to extend the interest payment
period on Debentures, and any extension for a period not exceeding 20
quarterly interest periods will not constitute an Event of Default under the
Indenture.
If any proposed amendment to the Declaration provides for, or
the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Property Trustee, upon the
occurrence of a Special Event or in connection with the redemption of
Preferred Securities as a consequence of a redemption of Debentures, then the
Holders of outstanding Securities will be entitled to vote on such amendment
or proposal as a class and such amendment or proposal shall not be effective
except with the approval of the Holders of Securities representing 66-2/3% in
liquidation amount of such Securities; provided, however, that (A) if any
amendment or proposal referred to in clause (i) above would adversely affect
only the Preferred Securities or the Common Securities, then only the affected
class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of
66-2/3% in liquidation amount of such class of Securities, (B) the rights of
Holders of Preferred Securities under Article V of the Declaration to appoint
and remove a Special Regular Trustee shall not be amended without the consent
of each Holder of Preferred Securities, and (C) amendments to the Declaration
shall be subject to such further requirements as are set forth in Sections
12.1 and 12.2 of the Declaration.
In the event the consent of the Property Trustee, as the holder
of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Property Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination. The
Property Trustee shall vote with respect to such amendment, modification or
termination as directed by a Majority in liquidation amount of the Securities
voting together as a single class; provided that where such amendment,
modification or termination of the Indenture requires the consent or vote of
(1) holders of Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (2) each holder of
Debentures, the Property Trustee may only vote with respect to that amendment,
modification or termination as directed by, in the case of clause (1) above,
the vote of Holders of Securities representing such specified percentage of the
aggregate liquidation amount of the Securities, or, in the case of clause (2)
above, each Holder of Securities; and provided, further, that the Property
Trustee shall be under no obligation to take any action in accordance with the
directions of the Holders of Securities unless the Property Trustee shall have
received, at the expense of the Sponsor, an opinion of nationally recognized
independent tax counsel recognized as expert in such matters to the effect
that the Trust will not be classified for United States federal income tax
purposes as an association taxable as a corporation or a partnership on
account of such action and will be treated as a grantor trust for United
States federal income tax purposes following such action.
Subject to Section 2.6 of the Declaration, and the provisions
of this and the next succeeding paragraph, the Holders of a Majority in
liquidation amount of the Preferred Securities, voting separately as a class
shall have the right to (A) on behalf of all Holders of Preferred Securities,
waive any past default that is waivable under the Declaration (subject to, and
in accordance with the Declaration) and (B) direct the time, method and place
of conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee, as the holder
of the Debentures, to (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising
any trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 6.06 of
the Indenture, or (iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable; provided
that where the taking of any action under the Indenture requires the consent
or vote of (1) holders of Debentures representing a specified percentage
greater than a majority in principal amount of the Debentures or (2) each
holder of Debentures, the Property Trustee may only take such action if
directed by, in the case of clause (1) above, the vote of Holders of Preferred
Securities representing such specified percentage of the aggregate liquidation
amount of the Preferred Securities, or, in the case of clause (2) above, each
Holder of Preferred Securities. The Property Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of the
Preferred Securities. Other than with respect to directing the time, method
and place of conducting any proceeding for any remedy available to the
Property Trustee or the Debenture Trustee as set forth above, the Property
Trustee shall be under no obligation to take any of the foregoing actions at
the direction of the Holders of Preferred Securities unless the Property
Trustee shall have received, at the expense of the Sponsor, an opinion of
nationally recognized independent tax counsel recognized as expert in such
matters to the effect that the Trust will not be classified for United States
federal income tax purposes as an association taxable as a corporation or a
partnership on account of such action and will be treated as a grantor trust
for United States federal income tax purposes following such action. If the
Property Trustee fails to enforce its rights under the Declaration (including,
without limitation, its rights, powers and privileges as a holder of the
Debentures under the Indenture), any Holder of Preferred Securities may, after
a period of 30 days has elapsed from such Holder's written request to the
Property Trustee to enforce such rights, institute a legal proceeding directly
against SunAmerica to enforce the Property Trustee's rights under the
Declaration, without first instituting a legal proceeding against the Property
Trustee or any other Person.
A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities will
constitute a waiver of the corresponding Event of Default under the
Declaration in respect of the Securities.
Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of Preferred
Securities convened for such purpose, at a meeting of all of the Holders of
Securities of the Trust or pursuant to written consent. The Regular Trustees
will cause a notice of any meeting at which Holders of Preferred Securities
are entitled to vote, or of any matter upon which action by written consent of
such Holders is to be taken, to be mailed to each Holder of record of Preferred
Securities. Each such notice will include a statement setting forth (i) the
date of such meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities in
accordance with the Declaration.
Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above,
any of the Preferred Securities at such time that are owned by SunAmerica or by
any entity directly or indirectly controlling or controlled by or under direct
or indirect common control with SunAmerica shall not be entitled to vote or
consent and shall, for purposes of such vote or consent, be treated as if they
were not outstanding.
Except as provided in this paragraph 5, Holders of the
Preferred Securities will have no rights to increase or decrease the number of
Trustees or to appoint, remove or replace a Trustee, which voting rights are
vested solely in the Holders of the Common Securities.
6. Pro Rata Treatment. A reference in these terms of the
Preferred Securities to any payment, distribution or treatment as being "Pro
Rata" shall mean pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding
unless, in relation to a payment, an Event of Default has occurred and is
continuing, in which case any funds available to make such payment shall be
paid first to each Holder of the Preferred Securities pro rata according to
the aggregate liquidation amount of Preferred Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Preferred Securities, to each Holder of Common Securities pro rata
according to the aggregate liquidation amount of Common Securities held by the
relevant Holder relative to the aggregate liquidation amount of all Common
Securities outstanding.
7. Ranking. The Preferred Securities rank pari passu and
payment thereon will be made Pro Rata with, the Common Securities except that
where an Event of Default occurs and is continuing, the rights of Holders of
Preferred Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise rank in priority to the rights of Holders
of the Common Securities.
8. Mergers, Consolidations or Amalgamations. The Trust may
not consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets to, any corporation or other body.
9. Transfer, Exchange, Method of Payments. Payment of
Distributions and payments on redemption of the Preferred Securities will be
payable, the transfer of the Preferred Securities will be registrable, and
Preferred Securities will be exchangeable for Preferred Securities of other
denominations of a like aggregate liquidation amount, at the principal
corporate trust office of the Property Trustee in The City of New York;
provided that payment of Distributions may be made at the option of the
Regular Trustees on behalf of the Trust by check mailed to the address of
the persons entitled thereto and that the payment on redemption of any
Preferred Security will be made only upon surrender of such Preferred
Security to the Property Trustee.
10. Acceptance of Indenture and Preferred Guarantee. Each
Holder of Preferred Securities, by the acceptance thereof, agrees to the
provisions of (i) the Preferred Guarantee, including the subordination
provisions therein and (ii) the Indenture and the Debentures, including the
subordination provisions of the Indenture.
11. No Preemptive Rights. The Holders of Preferred Securities
shall have no preemptive rights to subscribe to any additional Preferred
Securities or Common Securities.
12. Miscellaneous. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the
Indenture to a Holder without charge on written request to the Trust at its
principal place of business.
Annex I
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT
- - This Preferred Security is a Global Certificate within the meaning of the
Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company ("DTC") or a nominee of DTC. This Preferred Security
is exchangeable for Preferred Securities registered in the name of a person
other than DTC or its nominee only in the limited circumstances described in
the Declaration and no transfer of this Preferred Security (other than a
transfer of this Preferred Security as a whole by DTC to a nominee of DTC or
by a nominee of DTC to DTC or another nominee of DTC) may be registered except
in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
the Trust or its agent for registration of transfer, exchange or payment, and
any Preferred Security issued is a registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.]
Number [ ] Preferred Securities
B-
CUSIP NO. [_______]
Certificate Evidencing Preferred Securities
of
SunAmerica Capital Trust [_]
[____]% [_____________] Preferred Securities
(liquidation amount $25 per Preferred Security)
SunAmerica Capital Trust [_], a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby
certifies that _________ (the "Holder") is the registered owner of _____
(______) preferred securities of the Trust representing undivided beneficial
interests in the assets of the Trust designated the [____]% [___________]
Preferred Securities (liquidation amount $25 per Preferred Security) (the
"Preferred Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer. The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued
and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Declaration of Trust of the Trust dated as of
[____________], 199[_], as the same may be amended from time to time (the
"Declaration") including the designation of the terms of Preferred Securities
as set forth in Exhibit B thereto. The Preferred Securities and the Common
Securities issued by the Trust pursuant to the Declaration represent undivided
beneficial interests in the assets of the Trust, including the Debentures (as
defined in the Declaration) issued by SunAmerica Inc., a Maryland corporation
("SunAmerica"), to the Trust pursuant to the Indenture referred to in the
Declaration. The Holder is entitled to the benefits of the Guarantee
Agreement of SunAmerica dated as of [____________], 199[_] (the "Guarantee")
to the extent provided therein. The Trust will furnish a copy of the
Declaration, the Guarantee and the Indenture to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
The Holder of this Certificate, by accepting this Certificate,
is deemed to have (i) agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment to
all Senior Debt (as defined in the Indenture) as and to the extent provided in
the Indenture and (ii) agreed to the terms of the Guarantee, including that
the Guarantee is subordinate and junior in right of payment to all other
liabilities of SunAmerica, including the Debentures, except those made pari
passu or subordinate by their terms, and senior to all capital stock now or
hereafter issued by SunAmerica and to any guarantee now or hereafter entered
into by SunAmerica in respect of any of its capital stock.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed
this certificate this [____] day of [__________], 199[_].
SUNAMERICA CAPITAL TRUST [_]
By:_________________________, as trustee
Name: James R. Belardi
Title: Trustee
By:_________________________, as trustee
Name: Scott L. Robinson
Title: Trustee
Dated:
Countersigned and Registered:
The Bank of New York,
Transfer Agent and Registrar
By:___________________________
Authorized Signature
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Insert assignee's social security or tax identification number)
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
____________________________________________________________
____________________________________________________________
____________________________________________________________
agent to transfer this Preferred Security Certificate on the
books of the Trust. The agent may substitute another to act
for him or her.
Date: _________________________
Signature: ____________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S)
AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
EXHIBIT C
TERMS OF
COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration
of Trust of SunAmerica Capital Trust [_] dated as of [____________], 199[_]
(as amended from time to time, the "Declaration"), the designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth below (each capitalized term used but not
defined herein having the meaning set forth in the Declaration):
1. Designation and Number.(7) Common Securities of the Trust
with an aggregate liquidation amount in the assets of the Trust of
[______________________________________] Dollars ($[___________]) and a
liquidation amount in the assets of the Trust of $25 per Common Security, are
hereby designated as "[____]% [_____________] Common Securities". The Common
Security Certificates evidencing the Common Securities shall be substantially
in the form attached hereto as Annex I, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage, custom or
practice. The Common Securities are to be issued and sold to SunAmerica Inc.
("SunAmerica") in consideration of $[__________] in cash. In connection with
the issuance of and initial sale of the Preferred Securities and the Common
Securities, SunAmerica will deposit in the Trust, and the Trust will purchase,
respectively, as trust assets Debentures of SunAmerica having an aggregate
principal amount equal to $[___________], and bearing interest at an annual
rate equal to the annual Distribution rate on the Preferred Securities and
Common Securities and having payment and redemption provisions which
correspond to the payment and redemption provisions of the Preferred
Securities and Common Securities.
- ----------
(7) See preceding footnotes for a discussion of changes needed if an
over-allotment option is granted to Underwriters.
2. Distributions. (a) Periodic distributions payable on each
Common Security will be fixed at a rate per annum of [____]% (the "Coupon
Rate") of the stated liquidation amount of $25 per Common Security.
Distributions in arrears for more than one quarter will bear interest at the
rate per annum of [____]% thereof (to the extent permitted by applicable law),
compounded quarterly. The term "Distributions" as used in these terms means
such periodic cash distributions and any such interest payable unless
otherwise stated. A Distribution will be made by the Property Trustee only to
the extent that interest payments are made in respect of the Debentures held
by the Property Trustee. The amount of Distributions payable for any period
will be computed for any full quarterly Distribution period on the basis of a
360-day year of twelve 30-day months, and for any period shorter than a full
quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days
elapsed in such a 30-day month.
(b) Distributions on the Common Securities will be cumulative,
will accrue from [____________], 199[_] and will be payable quarterly in
arrears, on March 30, June 30, September 30 and December 30 of each year,
commencing on [____________], 199[_], except as otherwise described below, but
only if and to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee. So long as SunAmerica shall not be
in default in the payment of interest on the Debentures, SunAmerica has the
right under the Indenture for the Debentures to defer payments of interest by
extending the interest payment period from time to time on the Debentures for
a period not exceeding 20 consecutive quarterly interest periods (each, an
"Extension Period") and, as a consequence, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted by
applicable law) at the rate of [____]% per annum, compounded quarterly during
any such Extension Period. Prior to the termination of any such Extension
Period, SunAmerica may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarterly interest periods. Upon the
termination of any Extension Period and the payment of all amounts then due,
SunAmerica may commence a new Extension Period, subject to the above
requirements. Payments of accrued Distributions will be payable to Holders
of Common Securities as they appear on the books and records of the Trust on
the first record date after the end of the Extension Period.
(c) Distributions on the Common Securities will be payable
promptly by the Property Trustee (or other Paying Agent) upon receipt of
immediately available funds to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates which will be the March
15, June 15, September 15 and December 15 prior to the relevant Distribution
date which record and payment dates correspond to the record and interest
payment dates on the Debentures. Distributions payable on any Common
Securities that are not punctually paid on any Distribution date as a result
of SunAmerica having failed to make the corresponding interest payment on the
Debentures will forthwith cease to be payable to the person in whose name such
Common Security is registered on the relevant record date, and such defaulted
Distribution will instead be payable to the person in whose name such Common
Security is registered on the special record date established by the Regular
Trustees, which record date shall correspond to the special record date or
other specified date determined in accordance with the Indenture; provided,
however, that Distributions shall not be considered payable on any
Distribution payment date falling within an Extension Period unless SunAmerica
has elected to make a full or partial payment of interest accrued on the
Debentures on such Distribution payment date. Subject to any applicable laws
and regulations and the provisions of the Declaration, each payment in respect
of the Common Securities will be made as described in paragraph 9 hereof. If
any date on which Distributions are payable on the Common Securities is not a
Business Day, then payment of the Distribution payable on such date will be
made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
(d) All Distributions paid with respect to the Common
Securities and the Preferred Securities will be paid Pro Rata to the Holders
thereof entitled thereto. If an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to Distributions.
(e) In the event that there is any money or other property held
by or for the Trust that is not accounted for under the Declaration, such
money or property shall be distributed Pro Rata among the Holders of the
Preferred Securities and Common Securities.
3. Liquidation Distribution Upon Dissolution. In the event of
any voluntary or involuntary dissolution, winding-up or termination of the
Trust, the Holders of the Preferred Securities and Common Securities at the
date of the dissolution, winding-up or termination, as the case may be, will
be entitled to receive Pro Rata solely out of the assets of the Trust
available for distribution to Holders of Preferred Securities and Common
Securities, after satisfaction of liabilities to creditors, an amount equal to
the aggregate of the stated liquidation amount of $25 per Preferred Security
and Common Security plus accrued and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, and after
satisfaction of liabilities to creditors, Debentures in an aggregate principal
amount equal to the aggregate stated liquidation amount of such Preferred
Securities and Common Securities bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on, such Preferred
Securities and Common Securities, shall be distributed Pro Rata to the Holders
of the Preferred Securities and Common Securities in exchange for such
Securities.
If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Preferred Securities and Common Securities shall
be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive
Liquidation Distributions upon any such dissolution Pro Rata with Holders of
Preferred Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to such Liquidation Distribution.
4. Redemption and Distribution of Debentures. The Preferred
Securities and Common Securities may only be redeemed if Debentures having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and Common Securities are repaid, redeemed or distributed
as set forth below:
(a) Upon the repayment of the Debentures, in whole or in
part, whether at maturity, upon redemption at any time or from time to time on
or after [___________], 199[_], the proceeds of such repayment will be promptly
applied to redeem Pro Rata Preferred Securities and Common Securities having
an aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed, upon not less than 30 nor more than 60 days'
notice, at a redemption price of $25 per Preferred and Common Security plus an
amount equal to accrued and unpaid Distributions thereon to the date of
redemption, payable in cash (the "Redemption Price"). The date of any such
repayment or redemption of Preferred Securities and Common Securities shall be
established to coincide with the repayment or redemption date of the
Debentures.
(b) If fewer than all the outstanding Preferred Securities
and Common Securities are to be so redeemed, the Preferred Securities and the
Common Securities will be redeemed Pro Rata and the Common Securities to be
redeemed will be redeemed as described in paragraph 4(e)(ii) below. If a
partial redemption would result in the delisting of the Preferred Securities
by any national securities exchange or other organization on which the
Preferred Securities are then listed, SunAmerica pursuant to the Indenture
will only redeem Debentures in whole and, as a result, the Trust may only
redeem the Common Securities in whole.
(c) If, at any time, a Tax Event or an Investment Company
Event (each as hereinafter defined, and each a "Special Event") shall occur
and be continuing, the Regular Trustees shall, unless the Debentures are
redeemed in the limited circumstances described below, dissolve the Trust and,
after satisfaction of creditors, cause Debentures held by the Property Trustee
having an aggregate principal amount equal to the aggregate stated liquidation
amount of and accrued and unpaid interest equal to accrued and unpaid
Distributions on, and having the same record date for payment as the Preferred
Securities and Common Securities, to be distributed to the Holders of the
Preferred Securities and Common Securities on a Pro Rata basis in liquidation
of such Holders' interests in the Trust, within 90 days following the
occurrence of such Special Event; provided, however, that in the case of the
occurrence of a Tax Event, as a condition of such dissolution and
distribution, the Regular Trustees shall have received an opinion of a
nationally recognized independent tax counsel experienced in such matters (a
"No Recognition Opinion"), which opinion may rely on any then applicable
published revenue rulings of the Internal Revenue Service, to the effect that
the Holders of the Preferred Securities will not recognize any gain or loss
for United States federal income tax purposes as a result of the dissolution
of the Trust and distribution of Debentures; and provided, further, that, if
and as long as at the time there is available to the Trust the opportunity to
eliminate, within such 90 day period, the Special Event by taking some
ministerial action, such as filing a form or making an election, or pursuing
some other similar reasonable measure that has no adverse effect on the Trust,
SunAmerica or the Holders of the Preferred Securities ("Ministerial Action")
the Trust will pursue such measure in lieu of dissolution.
If in the case of the occurrence of a Tax Event, (i) the
Regular Trustees have received an opinion (a "Redemption Tax Opinion") of
nationally recognized independent tax counsel experienced in such matters
that, as a result of a Tax Event, there is more than an insubstantial risk
that SunAmerica would be precluded from deducting the interest on the
Debentures for United States federal income tax purposes even if the
Debentures were distributed to the Holders of Preferred Securities and Common
Securities in liquidation of such Holder's interest in the Trust as described
in this paragraph 4(c) or (ii) the Regular Trustees shall have been informed
by such tax counsel that a No Recognition Opinion cannot be delivered to the
Trust, SunAmerica shall have the right at any time, upon not less than 30 nor
more than 60 days' notice, to redeem the Debentures in whole or in part for
cash at the Redemption Price within 90 days following the occurrence of such
Tax Event, and promptly following such redemption Preferred Securities and
Common Securities with an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed will be redeemed by the Trust
at the Redemption Price on a Pro Rata basis: provided, however, that, if at
the time there is available to SunAmerica or the Regular Trustees on behalf of
the Trust the opportunity to eliminate, within such 90 day period, the Tax
Event by taking some Ministerial Action, SunAmerica or the Holders of the
Preferred Securities, SunAmerica or the Regular Trustees on behalf of the
Trust will pursue such measure in lieu of redemption; and provided, further,
that SunAmerica shall have no right to redeem the Debentures while the Regular
Trustees on behalf of the Trust are pursuing such Ministerial Action. The
Common Securities will be redeemed Pro Rata with the Preferred Securities,
except that if an Event of Default under the Indenture has occurred and is
continuing, the Preferred Securities will have a priority over the Common
Securities with respect to payment of the Redemption Price.
"Tax Event" means that the Regular Trustees shall have obtained
an opinion of nationally recognized independent tax counsel experienced in
such matters (a "Dissolution Tax Opinion") to the effect that on or after
[____________], 199[_] as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, (b) any amendment to, or change in, an
interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position or
(d) any action taken by any governmental agency or regulatory authority, which
amendment or change is enacted, promulgated, issued or announced or which
interpretation or pronouncement is issued or announced or which action is
taken, in each case on or after [____________], 199[_], there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the
date thereof, subject to United States federal income tax with respect to
income accrued or received on the Debentures, (ii) the Trust is, or will be
within 90 days of the date thereof, subject to more than a de minimis amount
of taxes, duties or other governmental charges or (iii) interest payable by
SunAmerica to the Trust on the Debentures is not, or within 90 days of the
date thereof will not be, deductible by SunAmerica for United States federal
income tax purposes.
"Investment Company Event" means that the Regular Trustees
shall have received an opinion of nationally recognized independent counsel
experienced in practice under the Investment Company Act that, as a result of
the occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by any legislative body, court,
governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or will be
considered an Investment Company which is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes effective on or
after [____________], 199[_].
On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Common Securities will no longer be deemed
to be outstanding and (ii) any certificates representing Common Securities
will be deemed to represent beneficial interests in the Debentures having an
aggregate principal amount equal to the stated liquidation amount of, and
bearing accrued and unpaid interest equal to accrued and unpaid Distributions
on, such Common Securities until such certificates are presented to SunAmerica
or its agent for transfer or reissuance.
(d) The Trust may not redeem fewer than all the outstanding
Common Securities unless all accrued and unpaid Distributions have been paid
on all Common Securities for all quarterly Distribution periods terminating on
or prior to the date of redemption.
(e)(i) Notice of any redemption of, or notice of distribution
of Debentures in exchange for, the Preferred Securities and Common Securities
(a "Redemption/Distribution Notice") will be given by the Regular Trustees on
behalf of the Trust by mail to each Holder of Preferred Securities and Common
Securities to be redeemed or exchanged not less than 30 nor more than 60 days
prior to the date fixed for redemption or exchange thereof. For purposes of
the calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this paragraph (e)(i), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of Preferred Securities and
Common Securities. Each Redemption/Distribution Notice shall be addressed to
the Holders of Preferred Securities and Common Securities at the address of
each such Holder appearing in the books and
records of the Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any other
Holder.
(ii) In the event that fewer than all the outstanding Common
Securities are to be redeemed, the Common Securities to be redeemed will be
redeemed Pro Rata from each Holder of Common Securities (subject to adjustment
to eliminate fractional Common Securities).
(iii) If the Trust gives a Redemption/ Distribution Notice in
respect of a redemption of Common Securities as provided in this paragraph 4
(which notice will be irrevocable) then immediately prior to the close of
business on the redemption date, provided that SunAmerica has paid to the
Property Trustee in immediately available funds a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures,
Distributions will cease to accrue on the Common Securities called for
redemption, such Common Securities will no longer be deemed to be outstanding
and all rights of Holders of such Common Securities so called for redemption
will cease, except the right of the Holders of such Common Securities to
receive the Redemption Price, but without interest on such Redemption Price.
Neither the Trustees nor the Trust shall be required to register or cause to
be registered the transfer of any Common Securities which have been so called
for redemption. If any date fixed for redemption of Common Securities is not
a Business Day, then payment of the Redemption Price payable on such date will
be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date fixed for redemption. If payment of the
Redemption Price in respect of Common Securities is improperly withheld or
refused and not paid by the Property Trustee, Distributions on such Common
Securities will continue to accrue, from the original redemption date to the
date of payment, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to the Holders of the Common
Securities.
(v) Upon the date of dissolution of the Trust and distribution
of Debentures as a result of the occurrence of a Special Event, Common
Security Certificates shall be deemed to represent beneficial interests in the
Debentures so distributed, and the Common Securities will no longer be deemed
outstanding and may be canceled by the Regular Trustees. The Debentures so
distributed shall have an aggregate principal amount equal to the aggregate
liquidation amount of the Common Securities so distributed.
5. Voting Rights. (a) Except as provided under paragraph
5(b) below and as otherwise required by law and the Declaration, the Holders
of the Common Securities will have no voting rights.
(b) Except as provided in the Declaration with respect to a
Special Regular Trustee, Holders of Common Securities have the sole right
under the Declaration to increase or decrease the number of Trustees, and to
appoint, remove or replace a Trustee, any such increase, decrease,
appointment, removal or replacement to be approved by Holders of Common
Securities representing a Majority in liquidation amount of the Common
Securities.
If any proposed amendment to the Declaration provides for, or
the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Property Trustee, upon the
occurrence of a Special Event or in connection with the redemption of Common
Securities as a consequence of a redemption of Debentures, then the Holders of
outstanding Securities will be entitled to vote on such amendment or proposal
as a class and such amendment or proposal shall not be effective except with
the approval of the Holders of Securities representing 66-2/3% in liquidation
amount of such Securities; provided, however, that (A) if any amendment or
proposal referred to in clause (i) above would adversely affect only the
Preferred Securities or the Common Securities, then only the affected class
will be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of 66-2/3% in
liquidation amount of such class of Securities, (B) the rights of Holders of
Common Securities under Article V of the Declaration to increase or decrease
the number of, and to appoint, replace or remove, Trustees (other than a
Special Regular Trustee) shall not be amended without the consent of each
Holder of Common Securities, and (C) amendments to the Declaration shall be
subject to such further requirements as are set forth in Sections 12.1 and
12.2 of the Declaration.
In the event the consent of the Property Trustee as the holder
of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Property Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination. The
Property Trustee shall vote with respect to such amendment, modification or
termination as directed by a Majority in liquidation amount of the Securities
voting together as a single class; provided that where such amendment,
modification or termination of the Indenture requires the consent or vote of
(1) holders of Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (2) each holder of
Debentures, the Property Trustee may only vote with respect to that amendment,
modification or termination as directed by, in the case of clause (1) above,
the vote of Holders of Securities representing such specified percentage of
the aggregate liquidation amount of the Securities, or, in the case of
clause (2) above, each Holder of Securities; and provided, further, that
the Property Trustee shall be under no obligation to take any action in
accordance with the directions of the Holders of the Securities unless the
Property Trustee shall have received, at the expense of the Sponsor, an
opinion of nationally recognized independent tax counsel recognized as an
expert in such matters to the effect that the Trust will not be classified
for United States federal income tax purposes as an association taxable as
a corporation or a partnership on account of such action and will be
treated as a grantor trust for United States federal income tax purposes
following such action.
Subject to Section 2.6 of the Declaration, and the provisions
of this and the next succeeding paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class
shall have the right to (A) on behalf of all Holders of Common Securities,
waive any past default that is waivable under the Declaration (subject to, and
in accordance with the Declaration) and (B) direct the time, method, and place
of conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee, as holder of
the Debentures, to (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising
any trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under Section 6.06 of the Indenture, or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and
payable; provided that where the taking of any action under the Indenture
requires the consent or vote of (1) holders of Debentures representing a
specified percentage greater than a majority in principal amount of the
Debentures or (e) each holder of Debentures, the Property Trustee may only
take such action if directed by, in the case of clause (1) above, the vote of
Holders of Common Securities representing such specified percentage of the
aggregate liquidation amount of the Common Securities, or, in the case of
clause (2) above, each Holder of Common Securities. Pursuant to this
paragraph, the Property Trustee shall not revoke, or take any action
inconsistent with, any action previously authorized or approved by a vote of
the Holders of the Preferred Securities, and shall not take any action in
accordance with the direction of the Holders of the Common Securities under
this paragraph if the action is prejudicial to the Holders of Preferred
Securities. Other than with respect to directing the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee or the Debenture Trustee as set forth above, the Property Trustee
shall be under no obligation to take any of the foregoing actions at the
direction of the Holders of Common Securities unless the Properties Trustee
shall have received, at the expense of the Sponsor, an opinion of
nationally recognized independent tax counsel recognized as expert in such
matters to the effect that the Trust will not be classified for United
States federal income tax purposes as an association taxable as a
corporation or a partnership on account of such action and will be treated
as a grantor trust for United States income tax purposes following such
action.
Notwithstanding any other provision of these terms, each Holder
of Common Securities will be deemed to have waived any Event of Default with
respect to the Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived by
the Holders of Preferred Securities as provided in the Declaration or
otherwise eliminated, and until all Events of Default with respect to the
Preferred Securities have been so cured, waived by the Holders of Preferred
Securities or otherwise eliminated, the Property Trustee will be deemed to be
acting solely on behalf of the Holders of Preferred Securities and only the
Holders of the Preferred Securities will have the right to direct the Property
Trustee in accordance with the terms of the Declaration or of the Securities.
In the event that any Event of Default with respect to the Preferred
Securities is waived by the Holders of Preferred Securities as provided in the
Declaration, the Holders of Common Securities agree that such waiver shall
also constitute the waiver of such Event of Default with respect to the Common
Securities for all purposes under the Declaration without any further act,
vote or consent of the Holders of the Common Securities.
A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities will
constitute a waiver of the corresponding Event of Default under the
Declaration in respect of the Securities.
Any required approval of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities of the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the
date by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to
vote or of such matter upon which written consent is sought and (iii)
instructions for the delivery of proxies or consents.
No vote or consent of the Holders of Common Securities will be
required for the Trust to redeem and cancel Common Securities in accordance
with the Declaration.
6. Pro Rata Treatment. A reference in these terms of the
Common Securities to any payment, distribution or treatment as being "Pro
Rata" shall mean pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding
unless, in relation to a payment, an Event of Default has occurred and is
continuing, in which case any funds available to make such payment shall be
paid first to each Holder of the Preferred Securities pro rata according to
the aggregate liquidation amount of Preferred Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Preferred
Securities outstanding, and only after satisfaction of all amounts owed to
the Holders of the Preferred Securities, to each Holder of Common
Securities pro rata according to the aggregate liquidation amount of Common
Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Common Securities outstanding.
7. Ranking. The Common Securities rank pari passu with the
Preferred Securities except that where an Event of Default occurs and is
continuing, the rights of Holders of Common Securities to payment in
respect of Distributions and payments upon liquidation, redemption or
otherwise are subordinate to the rights of Holders the Preferred
Securities.
8. Mergers, Consolidations or Amalgamations. The Trust may
not consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets to, any corporation or other body.
9. Transfers, Exchanges, Method of Payments. Payment of
Distributions and payments on redemption of the Common Securities will be
payable, the transfer of the Common Securities will be registrable, and Common
Securities will be exchangeable for Common Securities of other denominations
of a like aggregate liquidation amount, at the principal corporate trust
office of the Property Trustee in The City of New York; provided that payment
of Distributions may be made at the option of the Regular Trustees on behalf
of the Trust by check mailed to the address of the persons entitled thereto
and that the payment on redemption of any Common Security will be made only
upon surrender of such Common Security to the Property Trustee.
Notwithstanding the foregoing, transfers of Common Securities are subject to
conditions set forth in Section 9.1(c) of the Declaration.
10. Acceptance of Indenture. Each Holder of Common
Securities, by the acceptance thereof, agrees to the provisions of the
Indenture and the Debentures, including the subordination provisions thereof.
11. No Preemptive Rights. The Holders of Common Securities
shall have no preemptive rights to subscribe to any additional Common
Securities or Preferred Securities.
12. Miscellaneous. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the
Indenture to a Holder without charge on written request to the Trust at its
principal place of business.
Annex I
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
Certificate Number Number of Common Securities
C-1 [______]
Certificate Evidencing Common Securities
of
SunAmerica Capital Trust [_]
[____]% [____________] Common Securities
(liquidation amount $25 per Common Security)
SunAmerica Capital Trust [_], a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
SunAmerica Inc. (the "Holder") is the registered owner of
[_____________________] ([_______]) common securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the
[____]% [_____________] Common Securities (liquidation amount $25 per Common
Security) (the "Common Securities"). The Common Securities are transferable
on the books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer and satisfaction of the other conditions set forth in the
Declaration (as defined below) including, without limitation Section 9.1(c)
thereof. The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and shall
in all respects be subject to the terms and provisions of, the Amended and
Restated Declaration of Trust of the Trust dated as of [____________], 199[_],
as the same may be amended from time to time (the "Declaration") including the
designation of the terms of Common Securities as set forth in Exhibit C
thereto. The Common Securities and the Preferred Securities issued by the
Trust pursuant to the Declaration represent undivided beneficial interests in
the assets of the Trust, including the Debentures (as defined in the
Declaration) issued by SunAmerica Inc., a Maryland corporation, to the Trust
pursuant to the Indenture referred to in the Declaration. The Trust will
furnish a copy of the Declaration and the Indenture to the Holder without
charge upon written request to the Trust at its principal place of business or
registered office.
The Holder of this Certificate, by accepting this Certificate,
is deemed to have agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment
to all Senior Debt (as defined in the Indenture) as and to the extent provided
in the Indenture.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed
this certificate this [____] day of [_______], 199[_].
SUNAMERICA CAPITAL TRUST I
By________________________, as trustee
Name: James R. Belardi
Title: Trustee
By_________________________, as trustee
Name: Scott L. Robinson
Title: Trustee
Dated:
Countersigned and Registered:
The Bank of New York,
Transfer Agent and Registrar
By:___________________________
Authorized Signature
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Insert assignee's social security or tax identification number)
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
____________________________________________________________
____________________________________________________________
____________________________________________________________
agent to transfer this Common Security Certificate on the
books of the Trust. The agent may substitute another to act
for him or her.
Date: ________________________
Signature: _________________________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
Exhibit 4.12
------------------------------------------------------------
SUNAMERICA INC.
AND
[_________________________________]
as Trustee
-------------------
[SECOND] SUPPLEMENTAL INDENTURE
Dated as of [____________], 199[_]
TO
INDENTURE
Dated as of March 15, 1995
-------------------
[____]% Junior Subordinated Debentures,
Series [_], Due 20[__]
------------------------------------------------------------
[SECOND] SUPPLEMENTAL INDENTURE, dated as of the [____] day
of [__________], 199[_] (the "[Second] Supplemental Indenture"), between
SUNAMERICA INC., a corporation duly organized and existing under the laws
of the State of Maryland (hereinafter sometimes referred to as the
"Company") and [_________________________], a national banking association,
as trustee (hereinafter sometimes referred to as the "Trustee") under the
Indenture dated as of March 15, 1995 between the Company and the Trustee,
as supplemented by the First Supplemental Indenture thereto dated as of
March 15, 1995 (as so supplemented, the "Indenture"; as set forth in
Section 7.01 hereto, all terms used and not defined herein are used as
defined in the Indenture),
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of its junior subordinated
debentures (the "Debentures"), said Debentures to be issued from time to time
in series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debentures to
be known as its [____]% Junior Subordinated Debentures, Series [_], Due 20[__]
(said series being hereinafter referred to as the "Series [_] Debentures"),
the form and substance of such Series [_] Debentures and the terms, provisions
and conditions thereof to be set forth as provided in the Indenture and this
[Second] Supplemental Indenture; and
WHEREAS, the Company has caused to be formed SunAmerica Capital
Trust [_] ("SunAmerica Capital [___]") as a statutory business trust under the
Business Trust Act of the State of Delaware (12 Del. Code Section 3801 et
seq.) pursuant to a declaration of trust dated August 31, 1995 (the "Original
Declaration") and the filing of a certificate of trust with the Secretary of
State of the State of Delaware on September 6, 1995; and
WHEREAS, the Original Declaration is to be amended and
restated in its entirety pursuant to an Amended and Restated Declaration of
Trust dated as of [___________], 199[_] (such Amended and Restated
Declaration of Trust, as amended from time to time, the "Declaration of
Trust"; and
WHEREAS, SunAmerica Capital [_] desires to issue its [____]%
[_______] Preferred Securities (the "Preferred Securities") and sell such
Preferred Securities to initial purchasers;(*) and
WHEREAS, in connection with such purchases of Preferred
Securities and the related purchase by the Company of the Common Securities
(as defined in the Declaration of Trust) of SunAmerica Capital [_], the
Company will deposit, and SunAmerica Capital [_] will purchase, respectively,
as trust assets Series [_] Debentures;(*) and
____________
(*) An amended and restated Supplemental Indenture covering additional
Debentures may be needed in respect of additional Preferred Securities to be
issued if an over-allotment option is granted to Underwriters.
WHEREAS, pursuant to the Declaration of Trust, the legal title
to the Series [_] Debentures shall be owned and held of record in the name of
[The Bank of New York] or its successor under the Declaration of Trust, as
Property Trustee (the "Property Trustee"), in trust for the benefit of holders
of the Preferred Securities and the Common Securities; and
WHEREAS, upon the occurrence of a Special Event (as defined in
the Declaration of Trust) the Regular Trustees (as defined in the Declaration
of Trust) of SunAmerica Capital [_] shall, unless the Series [_] Debentures
are redeemed as described herein, dissolve SunAmerica Capital [_] and cause to
be distributed to the holders of the Preferred Securities and Common
Securities, on a Pro Rata basis (determined as provided in the terms of the
Preferred Securities and Common Securities attached as Exhibits B and C to the
Declaration of Trust), Series [_] Debentures and in connection with a
Liquidation Distribution (as defined in the Declaration of Trust) the Regular
Trustees may cause to be distributed to holders of Preferred Securities and
Common Securities, on such a Pro Rata basis, Series [_] Debentures (each a
"Dissolution Event"); and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this [Second] Supplemental
Indenture, and all requirements necessary to make this [Second] Supplemental
Indenture a valid instrument, in accordance with its terms, and to make the
Series [_] Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed and fulfilled, and the execution and delivery hereof have been in
all respects duly authorized;
NOW THEREFORE, in consideration of the purchase and acceptance
of the Series [_] Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Series [_] Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of
the Series [_] Debentures
SECTION 1.01. There shall be and is hereby authorized a
series of Debentures designated the "[____]% Junior Subordinated
Debentures, Series [_], Due 20[__]", limited in aggregate principal amount
to the sum of (i) $[________] plus (ii) a dollar amount equal to the
principal amount of Series [_] Debentures purchased by SunAmerica Capital
[_] with the proceeds received by SunAmerica Capital [_] from the purchase
by the Company of the Common Securities of SunAmerica Capital [_], which
amount shall be as set forth in any written order of the Company for the
authentication and delivery of Series [_] Debentures. The Series [_]
Debentures shall mature and the principal shall be due and payable together
with all accrued and unpaid interest thereon, including Compounded Interest
(as hereinafter defined) on [__________, 20[__], and shall be issued in the
form of registered Series [_] Debentures without coupons.(*)
____________
(*) See previous footnote regarding changes which may be required if an
over-allotment option is granted to Underwriters.
SECTION 1.02. The Series [_] Debentures shall be issued in
certificated form. Principal and interest on the Series [_] Debentures
issued in certificated form will be payable, the transfer of such Series
[_] Debentures will be registrable and such Series [_] Debentures will be
exchangeable for Series [_] Debentures bearing identical terms and
provisions at the office or agency of the Company in the Borough of
Manhattan, The City and State of New York; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Debenture register
and that the payment of principal with respect to the Series [_] Debentures
will only be made upon surrender of the Series [_] Debentures to the
Trustee. Notwithstanding the foregoing, so long as the Property Trustee is
the legal owner and record holder of the Series [_] Debentures, the payment
of the principal of and interest (including Compounded Interest, if any) on
the Series [_] Debentures held by the Property Trustee will be made by the
Company in immediately available funds on the payment date therefor at such
place and to the Property Account (as defined in the Declaration of Trust)
established and maintained by the Property Trustee pursuant to the
Declaration of Trust.
SECTION 1.03. Each Series [_] Debenture will bear interest
at the rate of [____]% per annum from [____________], 199[_] until the
principal thereof becomes due and payable, and on any overdue principal and
(to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum, compounded quarterly, payable (subject to the provisions of Article
Three) quarterly in arrears on March 30, June 30, September 30 and December
30 of each year (each, an "Interest Payment Date", commencing on
[___________], 19[__]), to the person in whose name such Series [_]
Debenture or any predecessor Series [_] Debenture is registered, at the
close of business on the regular record date for such interest installment,
which, except as set forth below, shall be the close of business on the
March 15, June 15, September 15 or December 15 next
preceding that Interest Payment Date.
Any such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered holders on such
regular record date, and may be paid to the person in whose name the Series
[_] Debenture (or one or more Predecessor Debentures) is registered at the
close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to
the registered holders of the Series [_] Debentures not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Series [_] Debentures may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in
the Indenture.
The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months and for any
period shorter than a full quarterly interest period for which interest is
computed, the amount of interest payable will be computed on the basis of
the actual number of days elapsed in such a 30-day month. In the event
that any date on which interest is payable on the Series [_] Debentures is
not a business day, then payment of interest payable on such date will be
made on the next succeeding day which is a business day (and without any
interest or other payment in respect of any such delay), except that, if
such business day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding business day, in each case with
the same force and effect as if made on such date.
ARTICLE TWO
Optional Redemption of the Series [_]
Debentures
SECTION 2.01. [Except as provided in Section 2.02, Series
[_] Debentures may not be redeemed by the Company prior to [__________],
19[__].] [Subject to the terms of Article Three of the Indenture], the
Company shall have the right to redeem the Series [_] Debentures, in whole
or in part, from time to time, [on or after [___________], 19[__],] at a
redemption price equal to 100% of the principal amount to be redeemed plus
any accrued and unpaid interest thereon, including Compounded Interest, if
any, to the date of such redemption (the "Optional Redemption Price"). Any
redemption pursuant to this paragraph will be made upon not less than 30
nor more than 60 days' notice, at the Optional Redemption Price.
SECTION 2.02. If, at any time, a Tax Event (as defined
below) shall occur or be continuing and (i) the Regular Trustees and the
Company shall have received an opinion (a "Redemption Tax Opinion") of a
nationally recognized independent tax counsel experienced in such matters
that, as a result of a Tax Event, there is more than an insubstantial risk
that the Company would be precluded from deducting the interest on the
Series [_] Debentures for United States federal income tax purposes even if
the Series [_] Debentures were distributed to the holders of Preferred
Securities and Common Securities in liquidation of such holder's interest
in SunAmerica Capital [_] as set forth in the Declaration of Trust or (ii)
the Regular Trustees shall have been informed by such tax counsel that a No
Recognition Opinion (as defined below) cannot be delivered to SunAmerica
Capital [_], the Company shall have the right at any time, upon not less
than 30 nor more than 60 days' notice, to redeem the Series [_] Debentures
in whole or in part for cash at the Optional Redemption Price within 90
days following the occurrence of such Tax Event; provided, however, that,
if at the time there is available to the Company or the Regular Trustees on
behalf of SunAmerica Capital [_] the opportunity to eliminate, within such
90 day period, the Tax Event by taking some ministerial action
("Ministerial Action"), such as filing a form or making an election, or
pursuing some other similar reasonable measure, which has no adverse effect
on SunAmerica Capital [_], the Company or the holders of the Preferred
Securities, the Company or the Regular Trustees on behalf of SunAmerica
Capital [_] will pursue such measure in lieu of redemption and provided
further that the Company shall have no right to redeem the Series [_]
Debentures while the Regular Trustees on behalf of SunAmerica Capital [_]
are pursuing any such Ministerial Action.
"Tax Event" means that the Company and the Regular Trustees
shall have obtained an opinion of nationally recognized independent tax
counsel experienced in such matters (a "Dissolution Tax Opinion") to the
effect that on or after [__________], 19[__], as a result of (a) any
amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, (b) any
amendment to, or change in, an interpretation or application of any such
laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect
to such laws or regulations that differs from the theretofore generally
accepted position or (d) any action taken by any governmental agency or
regulatory authority, which amendment or change is enacted, promulgated,
issued or announced or which interpretation or pronouncement is issued or
announced or which action is taken, in each case on or after [__________],
19[__], there is more than an insubstantial risk that (i) SunAmerica
Capital [_] is, or will be within 90 days of the date thereof, subject to
United States federal income tax with respect to income accrued or received
on the Series [_] Debentures, (ii) SunAmerica Capital [_] is, or will be
within 90 days of the date thereof, subject to more than a de minimis
amount of taxes, duties or other governmental charges or (iii) interest
payable by the Company to SunAmerica Capital [_] on the Series [_]
Debentures is not, or within 90 days of the date thereof will not be,
deductible by the Company for United States federal income tax purposes.
"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel experienced in such matters, which
opinion may rely on any then applicable published revenue ruling of the
Internal Revenue Service, to the effect that the holders of the Preferred
Securities will not recognize any gain or loss for United States federal
income tax purposes as a result of a dissolution of SunAmerica Capital [_]
and distribution of the Series [_] Debentures as provided in the
Declaration of Trust.
SECTION 2.03. If the Series [_] Debentures are only
partially redeemed pursuant to this Article Two, the Series [_] Debentures
will be redeemed pro rata or by lot or by any other method utilized by the
Trustee. Notwithstanding the foregoing, if a partial redemption of the
Series [_] Debentures would result in the delisting of the Preferred
Securities by any national securities exchange or other organization on
which the Preferred Securities are then listed, the Company shall not be
permitted to effect such partial redemption and will only redeem the Series
[_] Debentures in whole.
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. So long as the Company is not in default in
the payment of interest on the Series [_] Debentures, the Company shall
have the right, at any time during the term of the Series [_] Debentures,
from time to time to extend the interest payment period of such Series [_]
Debentures for up to 20 consecutive quarterly interest periods (the
"Extended Interest Payment Period"), at the end of which period the Company
shall pay all interest accrued and unpaid thereon (together with interest
thereon at the rate of [____]% per annum to the extent permitted by
applicable law, compounded quarterly ("Compounded Interest")). During such
Extended Interest Payment Period the Company shall not (i) declare or pay
any dividend on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of its common stock or preferred
stock or make any guarantee payments with respect thereto or (ii) make any
payment of interest, premium (if any) or principal or any debt securities
issued by the Company which rank pari passu with or junior to the Series
[_] Debentures; provided that (i) the Company may pay accrued dividends
(and cash in lieu of fractional shares) upon conversion of its Series D
Mandatory Conversion Premium Dividend Preferred Stock or upon the
conversion of any other Preferred Stock of the Company as may be
outstanding from time to time, in each case in accordance with the terms of
such stock and (ii) the foregoing will not apply to any stock dividends
paid by the Company. Prior to the termination of any such Extended
Interest Payment Period, the Company may pay all or any portion of the
interest accrued on the Series [_] Debentures on any Interest Payment Date
to holders of record on the regular record date for such Interest Payment
Date or from time to time further extend such Period; provided that such
Period together with all such further extensions thereof shall not exceed
20 consecutive quarterly interest periods. Upon the termination of any
Extended Interest Payment Period and upon the payment of all accrued and
unpaid interest then due, together with Compounded Interest, the Company
may select a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extended
Interest Payment Period, except at the end thereof. At the end of the
Extended Interest Payment Period the Company shall pay all interest accrued
and unpaid on the Series [_] Debentures including any Compounded Interest
which shall be payable to the holders of the Series [_] Debentures in whose
names the Series [_] Debentures are registered in the Debenture register on
the first record date after the end of the Extended Interest Payment
Period.
SECTION 3.02. (a) So long as the Property Trustee is the
legal owner and holder of record of the Series [_] Debentures, at the time
the Company selects an Extended Interest Payment Period, the Company shall
give both the Property Trustee and the Trustee written notice of its
selection of such Extended Interest Payment Period one business day prior
to the earlier of (i) the next succeeding date on which distributions on
the Preferred Securities are payable or (ii) the date SunAmerica Capital
[_] is required to give notice of the record date or the date such
distributions are payable to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Preferred
Securities, but in any event not less than one business day prior to such
record date. The Company shall cause SunAmerica Capital [_] to give notice
of the Company's selection of such Extended Interest Payment Period to the
holders of the Preferred Securities.
(b) If as a result of a Dissolution Event Series [_]
Debentures have been distributed to holders of Preferred Securities and
Common Securities, at the time the Company selects an Extended Interest
Payment Period, the Company shall give the holders of the Series [_]
Debentures and the Trustee written notice of its selection of such Extended
Interest Payment Period at least 10 business days prior to the earlier of
(i) the next succeeding Interest Payment Date or (ii) the date the Company
is required to give notice of the record or payment date of such interest
payment to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Series [_] Debentures.
SECTION 3.03. The quarter in which any notice is given
pursuant to Section 3.02 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted under
this Article Three.
ARTICLE FOUR
Covenants Applicable to Series [_] Debentures
SECTION 4.01. So long as any Preferred Securities remain
outstanding, the Company will not (a) declare or pay any dividends on, or
redeem, purchase, acquire or make a distribution or liquidation payment
with respect to, any of its common stock or preferred stock or make any
guarantee payments with respect thereto or (b) make any payment of
interest, premium (if any) or principal on any debt securities issued by
the Company that rank pari passu with or junior to the Series [_]
Debentures, if at such time (i) the Company shall be in default with
respect to its Guarantee Payments (as defined in the Guarantee Agreement)
or other payment obligations under the Guarantee Agreement, (ii) there
shall have occurred any Event of Default under the Indenture with respect
to the Series [_] Debentures or (iii) the Company shall have given notice
of its election of an Extended Interest Payment Period and such Period, or
any extension thereof, is continuing; provided that (a) the Company will be
permitted to pay accrued dividends (and cash in lieu of fractional shares)
upon the conversion of any of its Series D Mandatory Conversion Premium
Dividend Preferred Stock [and [_____] Preferred Stock] in accordance with
the terms of such stock and (b) the foregoing will not apply to any stock
dividends paid by the Company.
SECTION 4.02. In connection with the distribution of the
Series [_] Debentures to the holders of the Preferred Securities upon a
Dissolution Event, the Company will use its best efforts to list such
Series [_] Debentures on the New York Stock Exchange or on such other
exchange as the Preferred Securities are then listed and traded.
SECTION 4.03. The Company covenants and agrees for the
benefit of the holders of the Preferred Securities to comply fully with all
of its obligations and agreements under the Declaration of Trust,
including, without limitation, its obligations under Article IV thereof.
SECTION 4.04. Prior to the distribution of Series [_]
Debentures to the holders of Preferred Securities upon a Dissolution Event,
the Company covenants and agrees for the benefit of the holders of the
Preferred Securities (i) not to cause or permit the Common Securities to be
transferred except as permitted by the Declaration of Trust and (ii) not to
take any action which would cause the Trust to cease to be treated as a
grantor trust for United States federal income tax purposes, except in
connection with a distribution of the Series [_] Debentures as provided in
the Declaration of Trust.
ARTICLE FIVE
Form of Series [_] Debentures
SECTION 5.01. The Series [_] Debentures and the Trustee's
Certificate of Authentication to be endorsed thereon are to be
substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
No. $
CUSIP NO. [_______]
SUNAMERICA INC.
[____]% JUNIOR SUBORDINATED DEBENTURE,
Series [_], DUE 20[__]
SunAmerica Inc., a corporation duly organized and existing
under the laws of the State of Maryland (herein referred to as the
"Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to , or registered assigns, the principal sum of _________ Dollars on
December 30, 20[__], and to pay interest on said principal sum from
[__________], 19[__] or from the most recent interest payment date (each
such date, an "Interest Payment Date") to which interest has been paid or
duly provided for, quarterly (subject to deferral as set forth herein) in
arrears on March 30, June 30, September 30 and December 30 of each year
commencing [__________] 30, 19[__] at the rate of [____]% per annum plus
Compounded Interest, if any, until the principal hereof shall have become
due and payable, and on any overdue principal and premium, if any, and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at
the same rate per annum. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of twelve 30-
day months and for any period shorter than a full quarterly interest period
for which interest is computed, the amount of interest payable will be
computed on the basis of the actual number of days elapsed in such a 30-day
month. In the event that any date on which interest is payable on this
Debenture is not a business day, then payment of interest payable on such
date will be made on the next succeeding day which is a business day (and
without any interest or other payment in respect of any such delay), except
that, if such business day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding business day, in each
case with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the
person in whose name this Debenture (or one or more Predecessor Debentures,
as defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be the close
of business on the March 15, June 15, September 15 or December 15 next
preceding such Interest Payment Date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to
the registered holders on such regular record date, and may be paid to the
person in whose name this Debenture (or one or more Predecessor Debentures)
is registered at the close of business on a special record date to be fixed
by the Trustee for the payment of such defaulted interest, notice whereof
shall be given to the registered holders of this series of Debentures not
less than 10 days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Debentures may be listed, and upon
such notice as may be required by such exchange, all as more fully provided
in the Indenture. The principal of (and premium, if any) and the interest
on this Debenture shall be payable at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City and State
of New York, in any coin or currency of the United States of America which
at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered holder at such
address as shall appear in the Debenture register and that the payment of
principal will only be made upon the surrender of this Debenture to the
Trustee. Notwithstanding the foregoing, so long as the owner and record
holder of this Debenture is the Property Trustee (as defined in the
Indenture referred to on the reverse hereof), the payment of the principal
of (and premium, if any) and interest (including Compounded Interest, if
any) on this Debenture will be made at such place and to such account of
the Property Trustee as may be designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the
extent provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness, and this
Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture, by accepting the same, (a) agrees
to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so provided and
(c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, hereby waives all
notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such Holder
upon said provisions.
This Debenture shall not be entitled to any benefit under
the Indenture hereinafter referred to, be valid or become obligatory for
any purpose until the Certificate of Authentication hereon shall have been
signed by or on behalf of the Trustee.
Unless the Certificate of Authentication hereon has been
executed by the Trustee referred to on the reverse side hereof, this
Debenture shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
The provisions of this Debenture are continued on the
reverse side hereof and such continued provisions shall for all purposes
have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument
to be executed.
Dated _________________________
SUNAMERICA INC.
By _________________________
Attest:
By _________________________
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
[_________________________________], as Trustee
__________________________
or as Authentication Agent
By _________________________ _________________________
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of
Debentures of the Company (herein sometimes referred to as the
"Debentures"), specified in the Indenture, all issued or to be issued in
one or more series under and pursuant to an Indenture dated as of March 15,
1995 duly executed and delivered between the Company and
[_______________________], a [national banking association], as Trustee
(herein referred to as the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of March 15, 1995 between the Company and
the Trustee and the [Second] Supplemental Indenture dated as of
[_________], 199[_] between the Company and the Trustee (said Indenture as
so supplemented being hereinafter referred to as the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the holders of
the Debentures, and, to the extent specifically set forth in the Indenture,
the holders of Senior Indebtedness and Preferred Securities. By the terms
of the Indenture, the Debentures are issuable in series which may vary as
to amount, date of maturity, rate of interest and in other respects as in
the Indenture provided. This series of Debentures is designated the
[____]% Junior Subordinated Debentures, Series [_], due 20[__] and is
limited in aggregate principal amount as specified in said [Second]
Supplemental Indenture.
[Except as provided in the next paragraph, the Debentures
may not be redeemed by the Company prior to [__________], 19[__].] The
Company shall have the right to redeem this Debenture at the option of the
Company, without premium or penalty, in whole or in part at any time [on or
after [__________], 19[__]] (an "Optional Redemption"), at a redemption
price equal to 100% of the principal amount plus any accrued but unpaid
interest, including any Compounded Interest, if any, to the date of such
redemption (the "Optional Redemption Price"). Any redemption pursuant to
this paragraph will be made upon not less than 30 nor more than 60 days'
notice, at the Optional Redemption Price.
If, at any time, a Tax Event (as defined below) shall occur
or be continuing after receipt of a Dissolution Tax Opinion (as defined
below) and (i) the Regular Trustees and the Company shall have received an
opinion (a "Redemption Tax Opinion") of a nationally recognized independent
tax counsel experienced in such matters that, as a result of a Tax Event,
there is more than an insubstantial risk that the Company would be
precluded from deducting the interest on the Series [_] Debentures for
United States federal income tax purposes even if the Series [_] Debentures
were distributed to the holders of Preferred Securities and Common
Securities in liquidation of such holder's interest in SunAmerica Capital
[_] as set forth in the Declaration of Trust or (ii) the Regular Trustees
shall have been informed by such tax counsel that a No Recognition Opinion
(as defined below) cannot be delivered to SunAmerica Capital [_], the
Company shall have the right at any time, upon not less than 30 nor more
than 60 days' notice, to redeem the Series [_] Debentures in whole or in
part for cash at the Optional Redemption Price within 90 days following the
occurrence of such Tax Event; provided, however, that, if at the time there
is available to the Company or the Regular Trustees on behalf of SunAmerica
Capital [_] the opportunity to eliminate, within such 90 day period, the
Tax Event by taking some ministerial action ("Ministerial Action"), such as
filing a form or making an election, or pursuing some other similar
reasonable measure, which has no adverse effect on SunAmerica Capital [_],
the Company or the holders of the Preferred Securities, the Company or the
Regular Trustees on behalf of SunAmerica Capital [_] will pursue such
measure in lieu of redemption and provided further that the Company shall
have no right to redeem the Series [_] Debentures while the Regular
Trustees on behalf of SunAmerica Capital [_] are pursuing any such
Ministerial Action.
"Tax Event" means that the Company and the Regular Trustees
shall have obtained an opinion of nationally recognized independent tax
counsel experienced in such matters (a "Dissolution Tax Opinion") to the
effect that on or after [__________], 19[__], as a result of (a) any
amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, (b) any
amendment to, or change in, an interpretation or application of any such
laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect
to such laws or regulations that differs from the theretofore generally
accepted position or (d) any action taken by any governmental agency or
regulatory authority, which amendment or change is enacted, promulgated,
issued or announced or which interpretation or pronouncement is issued or
announced or which action is taken, in each case on or after [__________],
19[__], there is more than an insubstantial risk that (i) SunAmerica
Capital [_] is, or will be within 90 days of the date thereof, subject to
United States federal income tax with respect to income accrued or received
on the Series [_] Debentures, (ii) SunAmerica Capital [_] is, or will be
within 90 days of the date thereof, subject to more than a de minimis
amount of taxes, duties or other governmental charges or (iii) interest
payable by the Company to SunAmerica Capital [_] on the Series [_]
Debentures is not, or within 90 days of the date thereof will not be,
deductible by the Company for United States federal income tax purposes.
"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel experienced in such matters, which
opinion may rely on any then applicable published revenue ruling of the
Internal Revenue Service, to the effect that the holders of the Preferred
Securities will not recognize any gain or loss for United States federal
income tax purposes as a result of a dissolution of SunAmerica Capital [_]
and distribution of the Series [_] Debentures as provided in the
Declaration of Trust.
If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption or as a result of a Tax Event as
described above, the Debentures will be redeemed pro rata or by lot or in
some other equitable manner determined by the Trustee. Notwithstanding the
foregoing, if a partial redemption of the Series [_] Debentures would
result in the delisting of the Preferred Securities by any national
securities exchange or other organization on which the Preferred Securities
are then listed, the Company shall not be permitted to effect such partial
redemption and will only redeem the Series [_] Debentures in whole.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures of this series for unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation
hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the
Debentures may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Debenture upon compliance by the Company
with certain conditions set forth therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture (and, in the case of any
series of Debentures held as trust assets of a SunAmerica Capital Trust and
with respect to which a Security Exchange has not theretofore occurred,
such consent of holders of the Preferred Securities and the Common
Securities of such SunAmerica Capital Trust as may be required under the
Declaration of Trust of such SunAmerica Capital Trust), to execute
supplemental indentures for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Debentures; provided, however, that no
such supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof, without the consent of the
holder of each Debenture so affected or (ii) reduce the aforesaid
percentage of Debentures, the holders of which are required to consent to
any such supplemental indenture, without the consent of the holders of each
Debenture (and, in the case of any series of Debentures held as trust
assets of a SunAmerica Capital Trust and with respect to which a Security
Exchange has not theretofore occurred, such consent of the holders of the
Preferred Securities and the Common Securities of such SunAmerica Capital
Trust as may be required under the Declaration of Trust of such SunAmerica
Capital Trust) then outstanding and affected thereby. The Indenture also
contains provisions permitting the Holders of a majority in aggregate
principal amount of the Debentures of a series at the time outstanding
affected thereby (subject, in the case of any series of Debentures held as
trust assets of a SunAmerica Capital Trust and with respect to which a
Securities Exchange has not theretofore occurred, to such consent of
holders of Preferred Securities and Common Securities of such SunAmerica
Capital Trust as may be required under the Declaration of Trust of such
SunAmerica Capital Trust), on behalf of the Holders of the Debentures of
such series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a
default in the payment of the principal of or premium, if any, or interest
on any of the Debentures of such series. Any such consent or waiver by the
registered Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and of any Debenture issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
Subject to Section 13.13 of the Indenture, no reference
herein to the Indenture (other than such Section) and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place at
the rate and in the money herein prescribed.
So long as the Company is not in default in the payment of
interest on the Debentures, the Company shall have the right, at any time
during the term of the Debentures, from time to time to extend the interest
payment period of such Debentures for up to 20 consecutive quarterly
interest periods (the "Extended Interest Payment Period"), at the end of
which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate of [____]% per annum to the
extent permitted by applicable law, compounded quarterly ("Compounded
Interest")). During such Extended Interest Payment Period the Company
shall not (i) declare or pay any dividend on, or redeem, purchase, acquire
or make a distribution or liquidation payment with respect to, any of its
common stock or preferred stock, or make any guarantee payments with
respect thereto or (ii) make any payment of interest, premium (if any) or
principal or any debt securities issued by the Company which rank pari
passu with or junior to the Series [_] Debentures, provided that (a) the
Company may pay accrued dividends (and cash in lieu of fractional shares)
upon conversion of its Series D Mandatory Conversion Premium Dividend
Preferred Stock or upon the conversion of any other Preferred Stock of the
Company as may be outstanding from time to time, in each case in accordance
with the terms of such Stock and (b) the foregoing will not apply to any
stock dividends paid by the Company. Prior to the termination of any such
Extended Interest Payment Period, the Company may pay all or any portion of
the interest accrued on the Debentures on any Interest Payment Date to
holders of record on the regular record date for such Interest Payment Date
or from time to time further extend such Extended Interest Payment Period,
provided that such Period together with all such further extensions thereof
shall not exceed 20 consecutive quarterly interest periods. At the
termination of any such Extended Interest Payment Period and upon the
payment of all accrued and unpaid interest then due, together with
Compounded Interest, the Company may select a new Extended Interest Payment
Period, subject to the foregoing requirements. No interest on this
Debenture shall be due and payable during an Extended Interest Payment
Period, except at the end thereof. At the end of the Extended Interest
Payment Period the Company shall pay all interest accrued and unpaid on the
Series [_] Debentures including any Compounded Interest which shall be
payable to the holders of the Series [_] Debentures in whose names the
Series [_] Debentures are registered in the Debenture register on the first
record date after the end of the Extended Interest Payment Period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the
registered holder hereof on the Debenture register of the Company, upon
surrender of this Debenture for registration of transfer at the office or
agency of the Company in the Borough of Manhattan, The City and State of
New York accompanied by a written instrument or instruments of transfer in
form satisfactory to the Company or the Trustee duly executed by the
registered holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for
the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for
any such transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of
this Debenture, the Company, the Trustee, any paying agent and any
Debenture Registrar may deem and treat the registered holder hereof as the
absolute owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone
other than the Debenture Registrar) for the purpose of receiving payment of
or on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee
nor any paying agent nor any Debenture Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, officer or director, past, present
or future, as such, of the Company or of any predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
The Debentures of this series are issuable only in
registered form without coupons in denominations of $25 and any integral
multiple thereto. As provided in the Indenture and subject to certain
limitations therein set forth, Debentures of this Series are exchangeable
for a like aggregate principal amount of Debentures of this series of a
different authorized denomination, as requested by the Holder surrendering
the same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE SIX
Original Issue of Series [_] Debentures
SECTION 6.01. Series [_] Debentures in the aggregate
principal amount equal to the sum of $[________] plus a dollar amount equal
to the principal amount of Series [_] Debentures purchased by SunAmerica
Capital [_] with the proceeds received by SunAmerica Capital [_] from the
purchase by the Company of the Common Securities of SunAmerica Capital [_],
may, upon execution of this [Second] Supplemental Indenture, be executed by
the Company and delivered to the Trustee for authentication, and the
trustee shall thereupon authenticate and deliver said Debentures to or upon
the written order of the Company, signed by its Chairman, its President, or
any Vice President and its Treasurer or an Assistant Treasurer, without any
further action by the Company.(*)
____________
(*) See preceding footnote regarding changes which may be required if
an over-allotment option is granted to Underwriters.
ARTICLE SEVEN
Miscellaneous Provisions
SECTION 7.01. Except as otherwise expressly provided in
this [Second] Supplemental Indenture or in the form of Series [_] Debenture
or otherwise clearly required by the context hereof or thereof, all terms
used herein or in said form of Series [_] Debenture that are defined in the
Indenture shall have the several meanings respectively assigned to them
thereby.
SECTION 7.02. The Indenture, as supplemented by this
[Second] Supplemental Indenture, is in all respects ratified and confirmed,
and this [Second] Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and therein provided.
SECTION 7.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this [Second] Supplemental Indenture.
SECTION 7.04. This [Second] Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
[Second] Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, on the date or dates
indicated in the acknowledgments and as of the day and year first above
written.
SUNAMERICA INC.
By _________________________
Name:
Title:
Attest:
_________________________
Name:
Title:
[___________________________],
as Trustee
By _________________________
Name:
Title:
Attest:
_________________________
Assistant Secretary
STATE OF CALIFORNIA )
) ss.:
COUNTY OF Los Angeles ) [_____], 19[__]
On the ______ day of [______], in the year one thousand nine
hundred ninety-[______], before me personally came [___________] to me known,
who, being by me duly sworn, did depose and say that he resides at
[_________________________________________]; that he is
[_______________________________] of SUNAMERICA INC., one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to the said
instrument is such corporation seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
_________________________
NOTARY PUBLIC
My Commission Expires
STATE OF [_____________] )
) ss.:
COUNTY OF [____________] ) [_____], 19[__]
On the ______ day of [______], in the year one thousand nine
hundred ninety-[_____], before me personally came [_____________] to me known,
who, being by me duly sworn, did depose and say that he resides at
________________________________________, that he is a Vice President of
[___________________________], one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation and that he signed his name thereto by like authority.
_________________________
NOTARY PUBLIC
My Commission Expires
Exhibit 4.14
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of [______________], 19[__],
is executed and delivered by SunAmerica Inc., a Maryland corporation (the
"Guarantor"), and The Bank of New York, as the initial Guarantee Trustee (as
defined herein) for the benefit of the Holders (as defined herein) from time
to time of the Preferred Securities (as defined herein) of SunAmerica Capital
Trust [_], a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of [______________], 19[__] among the
trustees of the Issuer named therein, SunAmerica Inc., as Sponsor, and the
Holders from time to time of undivided beneficial interests in the assets of
the Issuer, the Issuer is issuing as of the date hereof $[_________] aggregate
liquidation amount of its [____]% [________________] Preferred Securities (the
"Preferred Securities") representing undivided beneficial interests in the
assets of the Issuer and having the terms set forth in Exhibit B to the
Declaration;(*)
____________
(*) An amended and restated Guarantee Agreement covering additional
Preferred Securities may be needed in respect of additional Preferred
Securities if an over-allotment option is granted to Underwriters.
WHEREAS, the Preferred Securities will be issued by the Issuer
upon deposit of the Guarantor's Debentures (as defined herein) with the Issuer
as trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred
Securities, the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth herein, to pay to the Holders of the Preferred Securities
the Guarantee Payments (as defined herein) and to make certain other payments
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by the initial
purchasers thereof of Preferred Securities, which purchase the Guarantor
hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers
this Guarantee Agreement for the benefit of the Holders from time to time of
the Preferred Securities.
ARTICLE I
SECTION 1.1 Definitions.
(a) Capitalized terms used in this Guarantee Agreement but
not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles
and Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined in
this Guarantee Agreement or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Commission" means the Securities and Exchange Commission.
"Common Securities" means the securities representing undivided
beneficial interests in the assets of the Issuer, having the terms set forth
in Exhibit C to the Declaration.
"Covered Person" means any Holder of Preferred Securities.
"Debentures" means the series of Junior Subordinated Debentures
issued by the Guarantor under the Indenture to the Property Trustee and
entitled the "[____]% Junior Subordinated Debentures, Series [_], due 20[__]".
"Distributions" means the periodic distributions and other
payments payable to Holders of Preferred Securities in accordance with the
terms of the Preferred Securities set forth in Exhibit B to the Declaration.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred Securities,
to the extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions and the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price"), with respect
to the Preferred Securities called for redemption by the Issuer but only if
and to the extent that in each case the Guarantor has made a payment to the
Property Trustee of interest or principal on the Debentures and (ii) upon a
voluntary or involuntary dissolution, winding-up or termination of the Issuer
(other than in connection with the distribution of Debentures to Holders or
the redemption of all the Preferred Securities upon the maturity or redemption
of the Debentures as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid Distributions
on the Preferred Securities to the date of payment, to the extent the Issuer
has funds available therefor, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer
(in either case, the "Liquidation Distribution").
"Guarantee Trustee" means The Bank of New York until a
Successor Guarantee Trustee has been appointed and accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each
such Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor or any entity directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Guarantor.
"Indemnified Person" means the Guarantee Trustee, any Affiliate
of the Guarantee Trustee, and any officers, directors, shareholders, members,
partners, employees, representatives or agents of the Guarantee Trustee.
"Indenture" means the Indenture dated as of March 15, 1995
between the Guarantor and The First National Bank of Chicago, as trustee, as
supplemented by (i) the First Supplemental Indenture thereto dated such date
and (ii) the [Second] Supplemental Indenture thereto dated as of
[_____________], 199[_], pursuant to which the Debentures are to be issued.
"Majority in liquidation amount of the Preferred Securities"
means, except as otherwise required by the Trust Indenture Act, Holder(s) of
outstanding Preferred Securities voting together as a single class, who are
the record owners of Preferred Securities whose liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) represents more than 50% of the liquidation amount
of all outstanding Preferred Securities.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" has the meaning set forth in the first
WHEREAS clause above.
"Property Trustee" means the Person acting as Property Trustee
under the Declaration.
"Redemption Price" means the amount payable on redemption of
the Preferred Securities in accordance with the terms of the Preferred
Securities.
"Responsible Officer" means, with respect to the Guarantee
Trustee, the chairman of the board of directors, the president, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Guarantee Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"66-2/3% in liquidation amount of the Preferred Securities"
means, except as otherwise required by the Trust Indenture Act, Holder(s) of
outstanding Preferred Securities voting together as a single class who are the
record owners of Preferred Securities whose liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) represents 66-23% or more of the liquidation amount of all
Preferred Securities.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as a Guarantee Trustee under
Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this Guarantee
Agreement and shall, to the extent applicable, be governed by such provisions;
(b) if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control; and
(c) the application of the Trust Indenture Act to this
Guarantee Agreement shall not affect the nature of the Preferred Securities as
equity securities representing undivided beneficial interests in the assets of
the Issuer.
SECTION 2.2 Lists of Holders of Preferred Securities.
(a) The Guarantor shall provide the Guarantee Trustee with
such information as is required under Section 312(a) of the Trust Indenture
Act at the times and in the manner provided in Section 312(a); and
(b) the Guarantee Trustee shall comply with its obligations
under Sections 310(b), 311 and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee.
Within 60 days after May 15 of each year, the Guarantee Trustee
shall provide to the Holders of the Preferred Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form, in
the manner and at the times provided by Section 313 of the Trust Indenture
Act. The Guarantee Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the
Commission and the Holders of the Preferred Securities, as applicable, such
documents, reports and information as required by Section 314(a)(1)-(3) (if
any) of the Trust Indenture Act and the compliance certificates required by
Section 314(a)(4) and (c) of the Trust Indenture Act, any such certificates
to be provided in the form, in the manner and at the times required by Section
314(a)(4) and (c) of the Trust Indenture Act (provided that any certificate to
be provided pursuant to Section 314(a)(4) of the Trust Indenture Act shall be
provided within 120 days of the end of each fiscal year of the Issuer).
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Guarantee Agreement which relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given pursuant to Section 314(c) shall comply with Section
314(e) of the Trust Indenture Act.
SECTION 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(b), Holders of Preferred Securities
may by vote of at least a Majority in liquidation amount of the Preferred
Securities, (A) direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee, or exercising any trust or
power conferred upon by the Guarantee Trustee or (B) on behalf of the Holders
of all Preferred Securities waive any past Event of Default and its
consequences. Upon such waiver, any such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Guarantee Agreement, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon.
(b) The right of any Holder of Preferred Securities to receive
payment of the Guarantee Payments in accordance with this Guarantee Agreement,
or to institute suit for the enforcement of any such payment, shall not be
impaired without the consent of each such Holder.
SECTION 2.7 Disclosure of Information.
The disclosure of information as to the names and addresses of
the Holders of the Preferred Securities in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such information was
derived, shall not be deemed to be a violation of any existing law, or any law
hereafter enacted which does not specifically refer to Section 312 of the
Trust Indenture Act, nor shall the Guarantee Trustee be held accountable by
reason of mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
SECTION 2.8 Conflicting Interest.
The Declaration shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee in trust for the benefit of the Holders of the Preferred Securities.
The Guarantee Trustee shall not transfer its right, title and interest in the
Guarantee Agreement to any Person except a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Guarantee Trustee or to a Holder of Preferred Securities exercising his or her
rights pursuant to Section 5.4. The right, title and interest of the
Guarantee Trustee to the Guarantee Agreement shall vest automatically in each
Person who may hereafter be appointed as Guarantee Trustee in accordance with
Article IV. Such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered.
(b) If an Event of Default occurs and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of
the Holders of the Preferred Securities.
(c) This Guarantee Agreement and all moneys received by the
Property Trustee hereunder in respect of the Guarantee Payments will not be
subject to any right, charge, security interest, lien or claim of any kind in
favor of, or for the benefit of that Guarantee Trustee or its agents or their
creditors.
(d) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the holders of the Preferred Securities, as their names and
addresses appear upon the register, notice of all Events of Default known to
the Guarantee Trustee, unless such defaults shall have been cured before the
giving of such notice; provided, that, the Guarantee Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or Responsible
Officers, of the Guarantee Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the Preferred
Securities. The Guarantee Trustee shall not be deemed to have knowledge of
any default except any default as to which the Guarantee Trustee shall have
received written notice or a Responsible Officer charged with the
administration of this Guarantee Agreement shall have obtained written notice.
(e) The Guarantee Trustee shall not resign as a Trustee unless
a Successor Guarantee Trustee has been appointed and accepted that appointment
in accordance with Article IV.
SECTION 3.2 Certain Rights and Duties of the
Guarantee Trustee.
(a) The Guarantee Trustee, before the occurrence of an Event
of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee Agreement, and no implied covenants shall be read into
this Guarantee Agreement against the Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.6(a)), the Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Guarantee Agreement, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this
Guarantee Agreement, and the Guarantee Trustee shall not
be liable except for the performance of such duties and
obligations as are specifically set forth in this
Guarantee Agreement, and no implied covenants or
obligations shall be read into this Guarantee Agreement
against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as
to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Guarantee Trustee, the
Guarantee Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Preferred Securities
as provided herein relating to the time, method and place of
conducting any proceeding for any remedy available to the Guarantee
Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if it shall have
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
(c) Subject to the provisions of Section 3.2(a) and (b):
(i) Whenever in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon a certificate, which
shall comply with the provisions of Section 314(e) of the Trust
Indenture Act, signed by any authorized officer of the Guarantor;
(ii) The Guarantor Trustee (A) may consult with counsel
(which may be counsel to the Guarantor or any of its Affiliates
and may include any of its employees) selected by it in good faith
and with due care and the written advice or opinion of such
counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon and in accordance with such advice and opinion and (B)
shall have the right at any time to seek instructions concerning
the administration of this Guarantee Agreement from any court of
competent jurisdiction;
(iii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it in good faith and with due care;
(iv) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holders of Preferred
Securities, unless such Holders shall have offered to the Guarantee
Trustee reasonable security and indemnity against the costs, expenses
(including attorneys' fees and expenses) and liabilities that might
be incurred by it in complying with such request or direction;
provided that nothing contained in this clause (iv) shall relieve the
Guarantee Trustee of the obligation, upon the occurrence of an Event
of Default (which has not been cured or waived) to exercise such of
the rights and powers vested in it by this Guarantee Agreement, and
to use the same degree of care and skill in this exercise, as a
prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs; and
(v) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders of the Preferred Securities and the
signature of the Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action; and no third
party shall be required to inquire as to the authority of the
Guarantee Trustee to so act, or as to its compliance with any of the
terms and provisions of this Guarantee Agreement, both of which shall
be conclusively evidenced by the Guarantee Trustee's or its agent's
taking such action.
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Qualifications.
(a) There shall at all times be a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
Section 4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time the Guarantee Trustee shall cease to satisfy the
requirements of clauses (i)-(ii) above, the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2.
If the Guarantee Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and the Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of
Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with Section
4.2(a) until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.1(a) has
been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor and the Guarantee Trustee being removed.
(c) The Guarantee Trustee appointed to office shall hold office until his
successor shall have been appointed or until its removal or
resignation.
(d) The Guarantee Trustee may resign from office (without need for prior
or subsequent accounting) by an instrument (a "Resignation Request")
in writing signed by the Guarantee Trustee and delivered to the
Guarantor, which resignation shall take effect upon such delivery or
upon such later date as is specified therein; provided, however, that
no such resignation of the Guarantee Trustee shall be effective until
a Successor Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.1(a) has been appointed and has
accepted such appointment by instrument executed by such Successor
Guarantee Trustee and delivered to Guarantor and the resigning
Guarantee Trustee.
(e) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days
after delivery to the Guarantor of a Resignation Request, the
resigning Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon after such notice, if any, as it may deem proper
and prescribe, appoint a Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer) regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. The Guarantor's obligation
to make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
SECTION 5.2 Waiver of Notice.
The Guarantor hereby waives notice of acceptance of this
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions (other than an extension of time
for payment of Distributions that results from the extension of any
interest payment period on the Debentures), Redemption Price,
Liquidation Distribution or any other sums payable under the terms of
the Preferred Securities or the extension of time for the performance
of any other obligation under, arising out of, or in connection with,
the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Preferred Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Enforcement of Guarantee.
The Guarantor and the Guarantee Trustee expressly acknowledge
that (i) this Guarantee Agreement will be deposited with the Guarantee Trustee
to be held for the benefit of the Holders; (ii) the Guarantee Trustee has the
right to enforce this Guarantee Agreement on behalf of the Holders; (iii)
Holders representing not less than a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available in respect of this
Guarantee Agreement including the giving of directions to the Guarantee
Trustee, or exercising any trust or other power conferred upon the Guarantee
Trustee under this Guarantee Agreement, and (iv) if the Guarantee Trustee fails
to enforce this Guarantee Agreement, any Holder of Preferred Securities may,
after a period of 30 days has elapsed from such Holder's written request to
the Guarantee Trustee to enforce this Guarantee Agreement, institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Guarantee Agreement, without first instituting a legal proceeding against the
Issuer, the Guarantee Trustee, or any other Person.
SECTION 5.5 Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not
merely of collection. This Guarantee Agreement will not be discharged except
by payment of the Guarantee Payments in full (without duplication of amounts
theretofore paid by the Issuer).
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to the Holders by
the Guarantor under this Guarantee Agreement; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Guarantee Agreement, if, at the time
of any such payment, any amounts are due and unpaid under this Guarantee
Agreement. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, the
Guarantor will not (a) declare or pay dividends on, or redeem, purchase,
acquire or make a distribution or liquidation payment with respect to, any of
its common stock or preferred stock or make any guarantee payment with respect
thereto or (b) make any payment of interest, premium (if any) or principal or
any debt securities issued by the Guarantor which rank pari passu or junior to
the Debentures, if at such time (i) the Guarantor shall be in default with
respect to its Guarantee Payments or other payment obligations hereunder, (ii)
there shall have occurred any event of default under the Declaration or (iii)
the Guarantor shall have given notice of its selection of an Extension Period
(as defined in the Indenture) and such period, or any extension thereof, is
continuing; provided that (a) the Guarantor will be permitted to pay accrued
dividends (and cash in lieu of fractional shares) upon the conversion of any
of its Series D Mandatory Conversion Premium Dividend Preferred Stock or upon
the conversion of any other Preferred Stock of the Guarantor as may be
outstanding from time to time, in each case in accordance with the terms of
such stock and (b) the foregoing will not apply to any stock dividends paid by
the Company. In addition, so long as any Preferred Securities remain
outstanding, the Guarantor (i) will remain the sole direct or indirect owner
of all of the outstanding Common Securities and shall not cause or permit the
Common Securities to be transferred except to the extent such transfer is
permitted under Section 9.1(c) of the Declaration; provided that any permitted
successor of the Guarantor under the Indenture may succeed to the Guarantor's
ownership of the Common Securities and (ii) will not take any action which
would cause the Issuer to cease to be treated as a grantor trust for United
States federal income tax purposes except in connection with a distribution of
Debentures as provided in the Declaration.
SECTION 6.2 Subordination.
This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in
right of payment to all other liabilities of the Guarantor, including the
Debentures, except those made pari passu or subordinate by their terms, and
(ii) senior to all capital stock now or hereafter issued by the Guarantor
and to any guarantee now or hereafter entered into by the Guarantor in
respect of any of its capital stock. The Guarantor's obligations under
this Guarantee Agreement will rank pari passu with respect to obligations
under other Guarantee Agreements which it may enter into from time to time
to the extent that such agreements shall be entered into in substantially
the form hereof and provide for comparable guarantees by the Guarantor of
payment on preferred securities issued by other SunAmerica Capital Trusts.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This Guarantee Agreement shall terminate and be of no further
force and effect upon full payment of the Redemption Price of all Preferred
Securities, upon the distribution of Debentures to Holders of Preferred
Securities and Common Securities in exchange for all of the Preferred
Securities and Common Securities or upon full payment of the amounts payable
in accordance with the Declaration upon liquidation of the Issuer.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
must restore payment of any sums paid with respect to the Preferred Securities
or this Guarantee Agreement.
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Guarantee Agreement or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Preferred
Securities might properly be paid.
SECTION 8.2 Indemnification.
(a) To the fullest extent permitted by applicable law, the
Guarantor shall indemnify and hold harmless each Indemnified Person from and
against any loss, damage or claim incurred by such Indemnified Person by
reason of any act or omission performed or omitted by such Indemnified Person
in good faith and in a manner such Indemnified Person reasonably believed to
be within the scope of authority conferred on such Indemnified Person by this
Guarantee Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or willful misconduct with respect
to such acts or omissions.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Guarantor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Guarantor of an
undertaking by or on behalf of the Indemnified Person to repay such amount if
it shall be determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 8.2(a).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under
Article Ten of the Indenture, the Guarantor shall not assign its obligations
hereunder.
SECTION 9.2 Amendments.
Except with respect to any changes which do not adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than 66-2/3% in liquidation amount of the
Preferred Securities. The provisions of Section 12.2 of the Declaration
concerning meetings of Holders shall apply to the giving of such approval.
SECTION 9.3 Notices.
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, telecopied or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the Holders:
SunAmerica Inc.
1 SunAmerica Center
Los Angeles, California 90067-6022
Facsimile No.: (310) 772-6635
Attention: Treasurer
(b) if given to the Guarantee Trustee, to the address set
forth below or such other address as the Guarantee Trustee may give notice to
the Holders:
The Bank of New York
101 Barclay Street
New York, New York 10286
Facsimile No.: 212-815-5999
Attention: Corporate Trust Trustee Administration
(c) if given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first
class mail, postage prepaid except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of which
no notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
SECTION 9.4 Genders.
The masculine, feminine and neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 9.5 Benefit.
This Guarantee Agreement is solely for the benefit of the
Holders and subject to Section 3.1(a) is not separately transferable from the
Preferred Securities.
SECTION 9.6 Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.7 Counterparts
This Guarantee Agreement may be executed in counterparts, each
of which shall be an original; but such counterparts shall together constitute
one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
SUNAMERICA INC.
By:____________________________
Name:
Title:
THE BANK OF NEW YORK,
As Guarantee Trustee
By:________________________
Name:
Title:
Exhibit 4.15
__________________________________________________
SUNAMERICA INC.
and
[_________________________________],
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
____________
DEPOSIT AGREEMENT
____________
Dated as of [____________], 199[_]
__________________________________________________
TABLE OF CONTENTS
Page
Parties............................................................ 1
Recitals........................................................... 1
ARTICLE I
DEFINITIONS
"Articles of Incorporation"........................................ 1
"Articles Supplementary"........................................... 1
"Common Stock"..................................................... 1
"Company".......................................................... 2
"Corporate Office"................................................. 2
"Deposit Agreement"................................................ 2
"Depositary"....................................................... 2
"Depositary Share"................................................. 2
"Depositary's Agent"............................................... 2
"New York Office".................................................. 2
"Receipt".......................................................... 2
"record holder".................................................... 3
"Registrar"........................................................ 3
"Securities Act"................................................... 3
"Stock"............................................................ 3
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts....................... 3
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts
in Respect Thereof................................ 4
SECTION 2.03. Redemption and Conversion of Stock.................. 5
SECTION 2.04. Register of Transfer of Receipts.................... 8
SECTION 2.05. Combination and Split-ups of Receipts .............. 8
SECTION 2.06. Surrender of Receipts and Withdrawal of Stock....... 9
SECTION 2.07. Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange of
Receipts and Withdrawal or Deposit of Stock....... 10
SECTION 2.08. Lost Receipts, etc....... .......................... 11
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts 11
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information... 11
SECTION 3.02. Payment of Taxes or Other Governmental Charges...... 12
SECTION 3.03. Withholding ........................................ 12
SECTION 3.04. Representations and Warranties as to Stock ......... 12
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01. Cash Distributions.................................. 13
SECTION 4.02. Distributions Other Than Cash....................... 13
SECTION 4.03. Subscription Rights, Preferences or Privileges ..... 14
SECTION 4.04. Notice of Dividends, Fixing of Record Date for
Holders of Receipts............................... 15
SECTION 4.05. Voting Rights....................................... 15
SECTION 4.06. Changes Affecting Stock and Reclassifications,
Recapitalizations, etc. ............................ 16
SECTION 4.07. Reports............................................. 16
SECTION 4.08. Lists of Receipt Holders............................ 16
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies, Transfer Books by
the Depositary; the Registrar..................... 17
SECTION 5.02. Prevention or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the
Company........................................... 18
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company............. 18
SECTION 5.04. Resignation and Removal of the Depositary,
Appointment of Successor Depositary............... 20
SECTION 5.05. Corporate Notices and Reports....................... 21
SECTION 5.06. Deposit of Stock by the Company..................... 21
SECTION 5.07. Indemnification by the Company...................... 21
SECTION 5.08. Fees, Charges and Expenses.......................... 22
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment........................................... 22
SECTION 6.02. Termination......................................... 23
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts........................................ 24
SECTION 7.02. Exclusive Benefits of Parties....................... 24
SECTION 7.03. Invalidity of Provisions............................ 24
SECTION 7.04. Notices............................................. 24
SECTION 7.05. Depositary's Agents................................. 25
SECTION 7.06. Holders of Receipts Are Parties..................... 25
SECTION 7.07. Governing Law....................................... 25
SECTION 7.08. Headings............................................ 25
TESTIMONIUM........................................................ 26
SIGNATURES......................................................... 26
EXHIBIT A.......................................................... A-1
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of [________], 199[_], among
SunAmerica Inc., a Maryland corporation, [_________________________________],
a [________] banking corporation, as Depositary, and all holders from time to
time of Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide as hereinafter set
forth in this Deposit Agreement, for the deposit of shares of Stock with the
Depositary, as agent for the beneficial owners of the Stock, for the purposes
set forth in this Deposit Agreement and for the issuance hereunder of the
Receipts evidencing Depositary Shares representing an interest in the Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form
annexed as Exhibit A to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit
Agreement.
NOW, THEREFORE, in consideration of the premises contained
herein, it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms
(in the singular and plural forms of such terms) used in this Deposit
Agreement and the Receipts:
"Articles of Incorporation" shall mean the Articles of
Incorporation, as amended and restated from time to time, of the Company.
"Articles Supplementary" shall mean the Articles Supplementary
establishing and setting forth the rights, preferences, privileges and
limitations of the Stock.
"Common Stock" shall mean the Company's Common Stock, par value
$1.00 per share.
"Company" shall mean SunAmerica Inc., a Maryland corporation,
and its successors.
"Corporate Office" shall mean the office of the Depositary in
[__________], [______________] at which at any particular time its business in
respect of matters governed by this Deposit Agreement shall be administered,
which at the date of this Deposit Agreement is located at
[______________________].
"Deposit Agreement" shall mean this agreement, as the same may
be amended, modified or supplemented from time to time.
"Depositary" shall mean [_________________________________], as
Depositary hereunder, and any successor as Depositary hereunder.
"Depositary Share" shall mean the rights evidenced by the
Receipts executed and delivered hereunder, including the interests in Stock
granted to holders of Receipts pursuant to the terms and conditions of the
Deposit Agreement. Each Depositary Share shall represent an interest in
[one-fiftieth] of a share of Stock deposited with the Depositary hereunder and
the same proportionate interest in any and all other property received by the
Depositary in respect of such share of Stock and held under this Deposit
Agreement. Subject to the terms of this Deposit Agreement, each record holder
of a Receipt evidencing a Depositary Share or Shares is entitled,
proportionately, to all the rights, preferences and privileges of the Stock
represented by such Depositary Share or Shares, including the dividend, voting
and liquidation rights contained in the Articles Supplementary, and to the
benefits of all obligations and duties of the Company in respect of the Stock
under the Articles Supplementary and the Articles of Incorporation.
"Depositary's Agent" shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in Section 7.05.
"New York Office" shall mean the facility maintained by the
Depositary in the Borough of Manhattan, The City of New York for accepting,
executing and delivering Receipts and other instruments prior to processing
such instruments at the Corporate Office, which facility at the date of this
Deposit Agreement is located at [______________________].
"Receipt" shall mean a Depositary Receipt executed and
delivered hereunder, in substantially the form of Exhibit A hereto, evidencing
Depositary Share or Shares, as the same may be amended from time to time in
accordance with the provisions hereof.
"record holder" or "holder" as applied to a Receipt shall mean
the person in whose name a Receipt is registered on the books maintained by or
on behalf of the Depositary for such purpose.
"Registrar" shall mean any bank or trust company appointed to
register ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's
[__________________________] Preferred Stock, [______] par value.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Receipts shall
be engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Receipts shall be executed by the Depositary by the
manual signature of a duly authorized signatory of the Depositary; provided,
however, that such signature may be a facsimile if a Registrar (other than the
Depositary) shall have countersigned the Receipts by manual signature of a
duly authorized signatory of the Registrar. No Receipt shall be entitled to
any benefits under this Deposit Agreement or be valid or obligatory for any
purpose unless it shall have been executed as provided in the preceding
sentence. The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided. Receipts bearing the
facsimile signature of anyone who was at any time a duly authorized officer of
the Depositary shall bind the Depositary, notwithstanding that such officer
has ceased to hold such office prior to the delivery of such Receipts.
Receipts may be issued in denominations of any number of whole
Depositary Shares. All Receipts shall be dated the date of their execution.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulation or with the rules and
regulations of any securities exchange upon which the Stock or the Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the Stock or
otherwise.
Title to any Receipt (and to the Depositary Shares evidenced by
such Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer shall be transferable by delivery with the same effect
as in the case of a negotiable instrument; provided, however, that the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, the Company or any holder of Stock may deposit such Stock
under this Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied,
if required by the Depositary, by a properly executed instrument of transfer in
form satisfactory to the Depositary, together with (i) all such certifications
as may be required by the Depositary in accordance with the provisions of this
Deposit Agreement and (ii) a written order of the Company or such holder, as
the case may be, directing the Depositary to execute and deliver to or upon
the written order of the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited
Stock.
Upon receipt by the Depositary of a certificate or certificates
for Stock to be deposited hereunder, together with the other documents
specified above, the Depositary shall, as soon as transfer and registration
can be accomplished, present such certificate or certificates to the registrar
and transfer agent of the Stock for transfer and registration in the name of
the Depositary or its nominee of the Stock being deposited. Deposited Stock
shall be held by the Depositary in an account to be established by the
Depositary at the Corporate Office.
Upon receipt by the Depositary of a certificate or certificates
for Stock to be deposited hereunder, together with the other documents
specified above, the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver, to or upon the order of the
person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section 2.02, a Receipt or Receipts
for the number of whole Depositary Shares representing the Stock so deposited
and registered in such name or names as may be requested by such person or
persons. The Depositary shall execute and deliver such Receipt or Receipts at
the New York Office, except that, at the request, risk and expense of any
person requesting such delivery and for the account of such person, such
delivery may be made at such other place as may be designated by such person.
In each case, delivery will be made only upon payment by such person to the
Depositary of all taxes and other governmental charges and any fees payable in
connection with such deposit and the transfer of the deposited Stock.
The Company shall deliver to the Depositary from time to time
such quantities of Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
SECTION 2.03. Redemption and Conversion of Stock.(*)
Whenever the Company shall elect to redeem or be required to convert shares of
Stock into shares of Common Stock in accordance with the Articles
Supplementary, it shall (unless otherwise agreed in writing with the
Depositary) give the Depositary in its capacity as Depositary not less than 5
business days' prior notice of the proposed date of the mailing of a notice of
redemption or conversion of Stock and the simultaneous redemption or
conversion of the Depositary Shares representing the Stock to be redeemed or
converted and of the number of such shares of Stock held by the Depositary to
be redeemed or converted. The Depositary shall, as directed by the Company in
writing, mail, first class postage prepaid, notice of the redemption or
conversion of Stock and the proposed simultaneous redemption or conversion of
the Depositary Shares representing the Stock to be redeemed or converted, not
less than 30 and not more than 60 days prior to the date fixed for redemption
or conversion of such Stock and Depositary Shares, to the record holders of
the Receipts evidencing the Depositary Shares to be so redeemed or converted,
at the addresses of such holders as the same appear on the records of the
Depositary; provided, that if the effectiveness of a Merger or Consolidation
(as defined in the Articles Supplementary) makes it impracticable to provide
at least 30 days' notice, the Depositary shall provide such notice as soon as
practicable prior to such effectiveness. Any such notice shall also be
published in the same manner as notices of redemption or conversion of Stock
are required to be published pursuant to Section 3[ ] of the Articles
Supplementary. Notwithstanding the foregoing, neither failure to mail or
publish any such notice to one or more such holders nor any defect in any
notice shall affect the sufficiency of the proceedings for redemption or
conversion. The Company shall provide the Depositary with such notice, and
each such notice shall state: the redemption or conversion date; the number of
Depositary Shares to be redeemed or converted; if fewer than all the
Depositary Shares held by any holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; in the case of a
call for redemption, the call price payable upon redemption and the Current
Market Price (as defined in the Articles Supplementary to be used to
calculate the number of shares of Common Stock deliverable upon redemption;
whether the Company is exercising any option to deliver shares of Common
Stock in lieu of any cash consideration pursuant to Section 3[ ] of the
Articles Supplementary and the Current Market Price to be used to calculate
the number of such shares; the place or places where Receipts evidencing
Depositary Shares to be redeemed or converted are to be surrendered for
redemption or conversion; whether the Company is depositing with a bank or
trust company on or before the redemption or conversion date, the shares of
Common Stock and cash, if any, payable by the Company and the proposed date
of such deposit; the amount of accrued and unpaid dividends payable per
share of Stock to be redeemed or converted to and including such redemption
or conversion date, as the case may be, and that dividends in respect of
the Stock represented by the Depositary Shares to be redeemed or converted
will cease to accrue on such redemption or conversion date (unless the
Company shall default in delivering shares of Common Stock and cash, if
any, at the time and place specified in such notice). On the date of any
such redemption or conversion, the Depositary shall surrender the
certificate or certificates held by the Depositary evidencing the number of
shares of Stock to be redeemed or converted in the manner specified in the
notice of redemption or conversion of Stock provided by the Company
pursuant to Section 3[ ] of the Articles Supplementary. The Depositary
shall, thereafter, redeem or convert the number of Depositary Shares
representing such redeemed or converted Stock upon the surrender of
Receipts evidencing such Depositary Shares in the manner provided in the
notice sent to record holders of Receipts; provided, that the Depositary
shall have received, upon surrendering such certificate or certificates as
aforesaid, a sufficient number of shares of Common Stock to convert or
redeem such number of Depositary Shares (including, in the event that the
Company elects pursuant to Section 3[ ] of the Articles Supplementary to
exercise any option to deliver shares of Common Stock in lieu of any cash
consideration payable on the Effective Date (as defined in the Articles
Supplementary) of any Merger or Consolidation, a number of shares of Common
Stock equal to such cash consideration (as determined in the manner set
forth in the Articles Supplementary)), plus any accrued and unpaid
dividends payable with respect thereto to and including the date of any
such redemption or conversion and any other cash consideration payable on
the Effective Date of a Merger or Consolidation (other than any dividends
or other cash consideration payable on the Effective Date of a Merger or
Consolidation that the Company has elected to pay in shares of Common Stock
pursuant to Section 3[ ] of the Articles Supplementary) as instructed and
calculated by the Company. In case fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed
shall be selected by the Depositary by lot or on a pro rata basis.
- ----------
(*) This section to be modified to discuss specific redemption or conversion
terms of the Stock, if any.
Notice having been mailed by the Depositary as aforesaid, from
and after the redemption or conversion date (unless the Company shall have
failed to redeem or convert the shares of Stock to be redeemed or converted by
it upon the surrender of the certificate or certificates therefor by the
Depositary as described in the preceding paragraph), the Depositary Shares
called for redemption or subject to conversion shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the shares of Common Stock and
cash, if any, payable upon redemption or conversion upon surrender of such
Receipts) shall, to the extent of such Depositary Shares, cease and terminate.
Upon surrender in accordance with said notice of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be converted into
or redeemed for shares of Common Stock at a rate equal to [one-fiftieth] of
the number of shares of Common Stock delivered, and the holders thereof shall
be entitled to [one-fiftieth] of the cash, if any, payable, in respect of the
shares of Stock pursuant to the Articles Supplementary. The foregoing shall
be subject further to the terms and conditions of the Articles Supplementary.
If fewer than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to the holder
of such Receipt upon its surrender to the Depositary, together with the shares
of Common Stock and all accrued and unpaid dividends to and including the date
fixed for redemption payable in respect of the Depositary Shares called for
redemption, a new Receipt evidencing the Depositary Shares evidenced by such
prior Receipt and not called for redemption.
To the extent that Depositary Shares are converted into or
redeemed for shares of Common Stock and all of such shares of Common Stock
cannot be distributed to the record holders of Receipts converted or called
for redemption without creating fractional interests in such shares, the
Depositary may, with the consent of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of such shares of Common Stock
at such place or places and upon such terms as it may deem proper, and the net
proceeds of any such sale shall, subject to Section 3.02, be distributed or
made available for distribution to such record holders that would otherwise
receive fractional interests in such shares of Common Stock.
The Depositary shall not be required (a) to issue, transfer or
exchange any Receipts for a period beginning at the opening of business 15
days next preceding any selection of Depositary Shares and Stock to be
redeemed and ending at the close of business on the day of the mailing of
notice of redemption of Depositary Shares or (b) to transfer or exchange for
another Receipt any Receipt evidencing Depositary Shares called or being
called for redemption, in whole or in part, or subject to conversion except as
provided in the second preceding paragraph of this Section 2.03.
SECTION 2.04. Register of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the Depositary shall
register on its books from time to time transfers of Receipts upon any
surrender thereof at the Corporate Office, the New York Office or such other
office as the Depositary may designate for such purpose, by the record holder
in person or by a duly authorized attorney, properly endorsed or accompanied
by a properly executed instrument of transfer, together with evidence of the
payment of any transfer taxes as may be required by law. Upon such surrender,
the Depositary shall execute a new Receipt or Receipts and deliver the same to
or upon the order of the person entitled thereto evidencing the same aggregate
number of Depositary Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.05. Combination and Split-ups of Receipts. Upon
surrender of a Receipt or Receipts at the Corporate Office, the New York
Office or such other office as the Depositary may designate for the purpose of
effecting a split-up or combination of Receipts, subject to the terms and
conditions of this Deposit Agreement, the Depositary shall execute and deliver
a new Receipt or Receipts in the authorized denominations requested evidencing
the same aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered; provided, however, that the Depositary shall not issue
any Receipt evidencing a fractional Depositary Share.
SECTION 2.06. Surrender of Receipts and Withdrawal of
Stock.(*) Any holder of a Receipt or Receipts may withdraw any or all of the
Stock (but only in whole shares of Stock) represented by the Depositary Shares
evidenced by such Receipts and all money and other property, if any,
represented by such Depositary Shares by surrendering such Receipt or Receipts
at the Corporate Office, the New York Office or at such other office as the
Depositary may designate for such withdrawals. After such surrender, without
unreasonable delay, the Depositary shall deliver to such holder, or to the
person or persons designated by such holder as hereinafter provided, the whole
number of shares of Stock and all such money and other property, if any,
represented by the Depositary Shares evidenced by the Receipt or Receipts so
surrendered for withdrawal. If the Receipt or Receipts delivered by the
holder to the Depositary in connection with such withdrawal shall evidence a
number of Depositary Shares in excess of the number of whole Depositary Shares
representing the whole number of shares of Stock to be withdrawn, the
Depositary shall at the same time, in addition to such whole number of shares
of Stock and such money and other property, if any, to be withdrawn, deliver
to such holder, or (subject to Section 2.04) upon his order, a new Receipt or
Receipts evidencing such excess number of whole Depositary Shares. Delivery
of the Stock and such money and other property being withdrawn may be made by
the delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate, which, if required by the Depositary,
shall be properly endorsed or accompanied by proper instruments of transfer.
- ----------
(*) This Section to be modified to reflect any restrictions on withdrawal of
underlying securities.
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holder
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank and that the signature on such instrument of transfer be guaranteed
by an eligible guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved signature
guarantee medallion program) pursuant to Rule 17Ad-15 of the Securities
Exchange Act of 1934, as amended.
The Depositary shall deliver the Stock and the money and other
property, if any, represented by the Depositary Shares evidenced by Receipts
surrendered for withdrawal, without unreasonable delay, at the office at which
such Receipts were surrendered, except that, at the request, risk and expense
of the holder surrendering such Receipt or Receipts and for the account of the
holder thereof, such delivery may be made, without unreasonable delay, at such
other place as may be designated by such holder.
SECTION 2.07. Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange of Receipts and Withdrawal or
Deposit of Stock. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, surrender or exchange of any
Receipt, the delivery of any distribution thereon or the withdrawal or deposit
of Stock, the Depositary, any of the Depositary's Agents or the Company may
require any or all of the following: (i) payment to it of a sum sufficient
for the payment (or, in the event that the Depositary or the Company shall
have made such payment, the reimbursement to it) of any tax or other
governmental charge with respect thereto (including any such tax or charge
with respect to the Stock being deposited or withdrawn or with respect to the
Common Stock or other securities or property of the Company being issued upon
conversion or redemption); (ii) production of proof satisfactory to it as to
the identity and genuineness of any signature; and (iii) compliance with such
reasonable regulations, if any, as the Depositary or the Company may establish
not inconsistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts
against Stock or the registration of transfer, split-up, combination,
surrender or exchange of outstanding Receipts and the withdrawal of deposited
Stock may be suspended (i) during any period when the register of stockholders
of the Company is closed, (ii) if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary's Agents or the Company at
any time or from time to time because of any requirement of law or of any
government or governmental body or commission, or under any provision of this
Deposit Agreement, or (iii) with the approval of the Company, for any other
reason. Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under this Deposit Agreement any shares of Stock
that are required to be registered under the Securities Act unless a
registration statement under the Securities Act is in effect as to such shares
of Stock.
SECTION 2.08. Lost Receipts, etc. In case any Receipt shall
be mutilated or destroyed or lost or stolen, the Depositary shall execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost
or stolen Receipt unless the Depositary has notice that such Receipt has been
acquired by a bona fide purchaser; provided, however, that the holder thereof
provides the Depositary with (i) evidence satisfactory to the Depositary of
such destruction, loss or theft of such Receipt, of the authenticity thereof
and of his ownership thereof, (ii) reasonable indemnification satisfactory to
the Depositary or the payment of any charges incurred by the Depositary in
obtaining insurance in lieu of such indemnification and (iii) payment of any
expense (including fees, charges and expenses of the Depositary) in connection
with such execution and delivery.
SECTION 2.09. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's
Agent shall be cancelled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary is authorized to destroy such
Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any person presenting Stock for deposit or any holder of a
Receipt may be required from time to time to file such proof of residence or
other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may reasonably
deem necessary or proper. The Depositary or the Company may withhold or delay
the delivery of any Receipt, the registration of transfer, redemption,
conversion or exchange of any Receipt, the withdrawal of the Stock represented
by the Depositary Shares evidenced by any Receipt or the distribution of any
dividend or other distribution until such proof or other information is filed,
such certificates are executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
If any tax or other governmental charge shall become payable by or on behalf
of the Depositary with respect to (i) any Receipt, (ii) the Depositary Shares
evidenced by such Receipt, (iii) the Stock (or fractional interest therein) or
other property represented by such Depositary Shares, or (iv) any transaction
referred to in Section 4.06, such tax (including transfer, issuance or
acquisition taxes, if any) or governmental charge shall be payable by the
holder of such Receipt, who shall pay the amount thereof to the Depositary.
Until such payment is made, registration of transfer of any Receipt or any
split-up or combination thereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares evidenced by such
Receipt may be refused, any dividend or other distribution may be withheld and
any part or all of the Stock or other property (including Common Stock
received in connection with a conversion or redemption of Stock) represented
by the Depositary Shares evidenced by such Receipt may be sold for the account
of the holder thereof (after attempting by reasonable means to notify such
holder prior to such sale). Any dividend or other distribution so withheld
and the proceeds of any such sale may be applied to any payment of such tax or
other governmental charge, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Withholding. The Depositary shall act as the
tax withholding agent for any payments, distributions and exchanges made with
respect to the Depositary Shares and Receipts, and the Stock, Common Stock or
other securities or assets represented thereby (collectively, the
"Securities"). The Depositary shall be responsible with respect to the
Securities for the timely (i) collection and deposit of any required
withholding or backup withholding tax, and (ii) filing of any information
returns or other documents with federal (and other applicable) taxing
authorities.
SECTION 3.04. Representations and Warranties as to Stock. In
the case of the initial deposit of the Stock, the Company and, in the case of
subsequent deposits thereof, each person so depositing Stock under this
Deposit Agreement shall be deemed thereby to represent and warrant that such
Stock and each certificate therefor are valid and that the person making such
deposit is duly authorized to do so. Such representations and warranties
shall survive the deposit of the Stock and the issuance of Receipts therefor.
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of
such sum as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary shall be
required by law to withhold and does withhold from any cash dividend or other
cash distribution in respect of the Stock an amount on account of taxes, the
amount made available for distribution or distributed in respect of Depositary
Shares shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any owner of Depositary Shares a
fraction of one cent and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
be treated as part of the next sum received by the Depositary for distribution
to record holders of Receipts then outstanding.
SECTION 4.02. Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash, rights, preferences
or privileges upon the Stock, the Depositary shall, subject to Section 3.02,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.04 such amounts of the securities or property received by it as are,
as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders, in any
manner that the Depositary and the Company may deem equitable and practicable
for accomplishing such distribution. If, in the opinion of the Company after
consultation with the Depositary, such distribution cannot be made
proportionately among such record holders, or if for any other reason
(including any tax withholding or securities law requirement), the Depositary
deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company which approval
shall not be unreasonably withheld, adopt such method as it deems equitable
and practicable for the purpose of effecting such distribution, including the
sale (at public or private sale) of the securities or property thus received,
or any part thereof, at such place or places and upon such terms as it may
deem proper. The net proceeds of any such sale shall, subject to Section
3.02, be distributed or made available for distribution, as the case may be,
by the Depositary to record holders of Receipts as provided by Section 4.01 in
the case of a distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the persons
in whose names Stock is registered on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or
any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made available by the
Depositary to the record holders of Receipts in such manner as the Company
shall instruct (including by the issue to such record holders of warrants
representing such rights, preferences or privileges); provided, however, that
(a) if at the time of issue or offer of any such rights, preferences or
privileges the Company determines and instructs the Depositary that it is not
lawful or feasible to make such rights, preferences or privileges available to
some or all holders of Receipts (by the issue of warrants or otherwise) or (b)
if and to the extent instructed by holders of Receipts who do not desire to
exercise such rights, preferences or privileges, the Depositary shall then, in
each case, and if applicable laws or the terms of such rights, preferences or
privileges so permit, sell such rights, preferences or privileges of such
holders at public or private sale, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall be distributed
by the Depositary to the record holders of Receipts entitled thereto as
provided by Section 4.01 in the case of a distribution received in cash.
If registration under the Securities Act of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold such securities, the Company shall
promptly file a registration statement pursuant to the Securities Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until such registration
statement shall have become effective or unless the offering and sale of such
securities to such holders are exempt from registration under the provisions of
the Securities Act.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the Company
will use its reasonable best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Fixing of Record Date for
Holders of Receipts. Whenever (i) any cash dividend or other cash
distribution shall become payable, or any distribution other than cash shall
be made, or any rights, preferences or privileges shall at any time be
offered, with respect to the Stock, or (ii) the Depositary shall receive
notice of any meeting at which holders of Stock are entitled to vote or of
which holders of Stock are entitled to notice or of the mandatory conversion
of, or any election on the part of the Company to call for the redemption of,
any shares of Stock, the Depositary shall in each such instance fix a record
date (which shall be the same date as the record date fixed by the Company with
respect to the Stock) for the determination of the holders of Receipts (x) who
shall be entitled to receive such dividend, distribution, rights, preferences
or privileges or the net proceeds of the sale thereof, or (y) who shall be
entitled to give instructions for the exercise of voting rights at any such
meeting or to receive notice of such meeting or of such conversion or
redemption.
SECTION 4.05. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of
Receipts a notice, which shall be provided by the Company and which shall
contain (i) such information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business on a specified
record date fixed pursuant to Section 4.04 will be entitled, subject to any
applicable provision of law, the Articles of Incorporation or the Articles
Supplementary, to instruct the Depositary as to the exercise of the voting
rights pertaining to the Stock represented by their respective Depositary
Shares and (iii) a brief statement as to the manner in which such instructions
may be given. Upon the written request of a holder of a Receipt on such record
date, the Depositary shall endeavor insofar as practicable to vote or cause to
be voted the Stock represented by the Depositary Shares evidenced by such
Receipt in accordance with the instructions set forth in such request. The
Company hereby agrees to take all reasonable action that may be deemed
necessary by the Depositary in order to enable the Depositary to vote such
Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.06. Changes Affecting Stock and Reclassifications,
Recapitalizations, etc. Upon any split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation affecting the Company or to which it is
a party (other than a Merger or Consolidation) or sale of all or substantially
all of the Company's assets, the Depositary shall treat any shares of stock or
other securities or property (including cash) that shall be received by the
Depositary in exchange for or upon conversion of or in respect of the Stock as
new deposited property under this Deposit Agreement, and Receipts then
outstanding shall thenceforth represent the proportionate interests of holders
thereof in the new deposited property so received in exchange for or upon
conversion or in respect of such Stock. In any such case the Depositary may,
in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
property.
SECTION 4.07. Reports. The Depositary shall make available
for inspection by holders of Receipts at the Corporate Office, the New York
Office and at such other places as it may from time to time deem advisable
during normal business hours any reports and communications received from the
Company that are received by the Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a list,
as of a recent date, of the names, addresses and holdings of Depositary Shares
of all persons in whose names Receipts are registered on the books of the
Depositary. At the expense of the Company, the Company shall have the right
to inspect transfer and registration records of the Depositary, any
Depositary's Agent or the Registrar, take copies thereof and require the
Depositary, any Depositary's Agent or the Registrar to supply copies of such
portions of such records as the Company may request.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies, Transfer Books
by the Depositary; the Registrar. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain (i) at the New York
Office facilities for the execution and delivery, registration, registration
of transfer, surrender and exchange, split-up, combination, redemption and
conversion of Receipts and deposit and withdrawal of Stock and (ii) at the
Corporate Office and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration, registration of transfer, surrender
and exchange, split-up, combination, conversion and redemption of Receipts and
deposit and withdrawal of Stock, all in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times
shall be open for inspection by the record holders of Receipts; provided that
any such holder requesting to exercise such right shall certify to the
Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares. The
Depositary shall consult with the Company upon receipt of any request for
inspection. The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or
the Stock represented by such Depositary Shares shall be listed on one or more
stock exchanges, the Depositary shall, with the approval of the Company,
appoint a Registrar for registry of such Receipts or Depositary Shares in
accordance with the requirements of such exchange or exchanges. Such
Registrar (which may be the Depositary if so permitted by the requirements of
such exchange or exchanges) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval of the
Company. In addition, if the Receipts, such Depositary Shares or such Stock
are listed on one or more stock exchanges, the Depositary will, at the request
of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange, split-up, combination,
redemption or conversion of such Receipts, such Depositary Shares or such
Stock as may be required by law or applicable stock exchange regulations.
SECTION 5.02. Prevention or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither
the Depositary nor any Depositary's Agent nor the Registrar nor the Company
shall incur any liability to any holder of any Receipt, if by reason of any
provision of any present or future law or regulation thereunder of the United
States of America or of any other governmental authority or, in the case of
the Depositary, the Registrar or any Depositary's Agent, by reason of any
provision, present or future, of the Articles of Incorporation or the Articles
Supplementary or, in the case of the Company, the Depositary, the Registrar or
any Depositary's Agent, by reason of any act of God or war or other
circumstances beyond the control of the relevant party, the Depositary, any
Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing that the terms of this
Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, the Registrar or the Company incur any
liability to any holder of a Receipt (i) by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing that the
terms of this Deposit Agreement provide shall or may be done or performed, or
(ii) by reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement except, in the case of the Depositary,
any Depositary's Agent or the Registrar, if any such exercise or failure to
exercise discretion is caused by its negligence or bad faith.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. The Company assumes no obligation and
shall be subject to no liability under this Deposit Agreement or the Receipts
to holders or other persons, except to perform in good faith such obligations
as are specifically set forth and undertaken by it to perform in this Deposit
Agreement. Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to holders or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to perform in
this Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding with respect to
Stock, Depositary Shares, Receipts or Common Stock that in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be liable for any action or any failure to act
by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Stock for deposit, any holder of a Receipt
or any other person believed by it in good faith to be competent to give such
advice or information. The Depositary, any Depositary's Agent, the Registrar
and the Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary, the Registrar and any Depositary's Agent may
own and deal in any class of securities of the Company and its affiliates and
in Receipts or Depositary Shares. The Depositary may also act as transfer
agent or registrar of any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's
Agent shall be deemed to be an "issuer" of the Stock, the Depositary Shares,
the Receipts or the Common Stock issued upon conversion or redemption of the
Stock under the federal securities laws or applicable state securities laws,
it being expressly understood and agreed that the Depositary and any
Depositary's Agent are acting only in a ministerial capacity as Depositary for
the Stock; provided, however, that the Depositary agrees to comply with all
information reporting and withholding requirements applicable to it under law
or this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees
or agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of the Registration Statement pursuant to
which the Depositary Shares are registered under the Securities Act, the
Stock, the Depositary Shares or any instruments referred to therein or herein,
or as to the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its representations in this
Deposit Agreement.
The Depositary assumes no responsibility for the correctness of
the description that appears in the Receipts, which can be taken as a
statement of the Company summarizing certain provisions of this Deposit
Agreement. Notwithstanding any other provision herein or in the Receipts, the
Depositary makes no warranties or representations as to the validity,
genuineness or sufficiency of any Stock at any time deposited with the
Depositary hereunder or of the Depositary Shares, as to the validity or
sufficiency of this Deposit Agreement, as to the value of the Depositary
Shares or as to any right, title or interest of the record holders of Receipts
in and to the Depositary Shares except that the Depositary hereby represents
and warrants as follows: (i) the Depositary has been duly organized and is
validly existing and in good standing under the laws of the State of
[____________], with full power, authority and legal right under such law to
execute, deliver and carry out the terms of this Deposit Agreement; (ii) this
Deposit Agreement has been duly authorized, executed and delivered by the
Depositary; and (iii) this Deposit Agreement constitutes a valid and binding
obligation of the Depositary, enforceable against the Depositary in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law). The Depositary shall not be accountable
for the use or application by the Company of the Depositary Shares or the
Receipts or the proceeds thereof.
SECTION 5.04. Resignation and Removal of the Depositary,
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by written notice via registered mail of its election to
do so delivered to the Company, such resignation to take effect upon the
appointment of a successor depositary and its acceptance of such appointment
as hereinafter provided.
The Depositary may at any time be removed by the Company by
written notice of such removal delivered to the Depositary, such removal to
take effect upon the appointment of a successor depositary and its acceptance
of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 45 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a successor
depositary, which shall be a bank or trust company, or an affiliate of a bank
or trust company, having its principal office in the United States of America
and having a combined capital and surplus of at least $50,000,000. If a
successor depositary shall not have been appointed in 45 days, the resigning
or removed Depositary may petition a court of competent jurisdiction to
appoint a successor depositary. Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor depositary,
without any further act or deed, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor and for all
purposes shall be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the written request of
the Company, shall promptly execute and deliver an instrument transferring
to such successor all rights and powers of such predecessor hereunder,
shall duly assign, transfer and deliver all rights, title and interest in
the Stock and any moneys or property held hereunder to such successor and
shall deliver to such successor a list of the record holders of all
outstanding Receipts. Any successor depositary shall promptly mail notice
of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act. Such
successor depositary may execute the Receipts either in the name of the
predecessor depositary or in the name of the successor depositary.
SECTION 5.05. Corporate Notices and Reports. The Company
agrees that it will deliver to the Depositary, and the Depositary will,
promptly after receipt thereof, transmit to the record holders of Receipts, in
each case at the address recorded in the Depositary's books, copies of all
notices and reports (including financial statements) required by law, by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed or by the Articles of Incorporation and the
Articles Supplementary to be furnished by the Company to holders of Stock.
Such transmission will be at the Company's expense and the Company will
provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit
to the record holders of Receipts at the Company's expense such other
documents as may be requested by the Company.
SECTION 5.06. Deposit of Stock by the Company. The Company
agrees with the Depositary that neither the Company nor any company controlled
by the Company will at any time deposit any Stock if such Stock is required to
be registered under the provisions of the Securities Act and no registration
statement is at such time in effect as to such Stock.
SECTION 5.07. Indemnification by the Company. The Company
agrees to indemnify the Depositary, any Depositary's Agent and any Registrar
against, and hold each of them harmless from, any liability, costs and expenses
(including reasonable fees and expenses of counsel) that may arise out of or
in connection with its acting as Depositary, Depositary's Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts, except for any
liability arising out of negligence, bad faith or willful misconduct on the
part of any such person or persons.
SECTION 5.08. Fees, Charges and Expenses. No fees, charges
and expenses of the Depositary or any Depositary's Agent hereunder or of any
Registrar shall be payable by any person other than the Company, except for any
taxes and other governmental charges and except as provided in this Deposit
Agreement. If, at the request of a holder of a Receipt, the Depositary incurs
fees, charges or expenses for which it is not otherwise liable hereunder, such
holder or other person will be liable for such fees, charges and expenses.
All other fees, charges and expenses of the Depositary and any Depositary's
Agent hereunder and of any Registrar (including, in each case, reasonable fees
and expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid from time to time upon consultation and
agreement between the Depositary and the Company as to the amount and nature of
such fees, charges and expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any
provision of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect that
they may deem necessary or desirable. Any amendment that shall impose or
increase any fees, taxes or charges payable by holders of Receipts (other than
taxes and other governmental charges, fees and other expenses payable by
holders pursuant to the terms hereof or of the Receipts), or that shall
otherwise prejudice any substantial existing right of holders of Receipts,
shall not become effective as to outstanding Receipts until the expiration of
90 days after notice of such amendment shall have been given to the record
holders of outstanding Receipts. Every holder of an outstanding Receipt at
the time any such amendment becomes effective shall be deemed, by continuing
to hold such Receipt, to consent and agree to such amendment and to be bound
by this Deposit Agreement as amended thereby. In no event shall any amendment
impair the right, subject to the provisions of Sections 2.03, 2.06 and 2.07
and Article III, of any owner of any Depositary Shares to surrender the
Receipt evidencing such Depositary Shares with instructions to the Depositary
to deliver to the holder the Stock and all money and other property, if any,
represented thereby, except in order to comply with mandatory provisions of
applicable law.
SECTION 6.02. Termination. Whenever so directed by the
Company, the Depositary will terminate this Deposit Agreement by mailing
notice of such termination to the record holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate this Deposit Agreement if
at any time 45 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.04.
If any Receipts shall remain outstanding after the date of
termination of this Deposit Agreement, the Depositary thereafter shall
discontinue the transfer of Receipts, shall suspend the distribution of
dividends to the holders thereof and shall not give any further notices (other
than notice of such termination) or perform any further acts under this
Deposit Agreement, except as provided below and that the Depositary shall
continue to collect dividends and other distributions pertaining to Stock,
shall sell rights, preferences or privileges as provided in this Deposit
Agreement and shall continue to deliver the Stock and any money and other
property represented by Receipts, without liability for interest thereon, upon
surrender thereof by the holders thereof. At any time after the expiration of
two years from the date of termination, the Depositary may sell Stock then
held hereunder at public or private sale, at such places and upon such
terms as it deems proper and may thereafter hold in a segregated account
the net proceeds of any such sale, together with any money and other
property held by it hereunder, without liability for interest, for the
benefit, pro rata in accordance with their holdings, of the holders of
Receipts that have not heretofore been surrendered. After making such
sale, the Depositary shall be discharged from all obligations under this
Deposit Agreement except to account for such net proceeds and money and
other property. Upon the termination of this Deposit Agreement, the
Company shall be discharged from all obligations under this Deposit
Agreement except for its obligations to the Depositary, any Depositary's
Agent and any Registrar under Sections 5.07 and 5.08. In the event this
Deposit Agreement is terminated, the Company hereby agrees to use its best
efforts to list the underlying Stock on the New York Stock Exchange, Inc.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be
executed by the Company and the Depositary in separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed an
original, but all such counterparts taken together shall constitute one and
the same instrument. Delivery of an executed counterpart of a signature page
to this Deposit Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the Corporate
Office and the New York Office and the respective offices of the Depositary's
Agents, if any, by any holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail, or by telegram or
telex or telecopier confirmed by letter, addressed to the Company at 1
SunAmerica Center, Century City, Los Angeles, California 90067-6022,
Attention: Treasurer, or at any other place to which the Company may have
transferred its principal executive office.
Any notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given
if personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder
or under the Receipts shall be in writing and shall be deemed to have been
duly given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to such record holder at the address
of such record holder as it appears on the books of the Depositary or, if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a duly addressed letter confirming an earlier
notice in the case of a telegram or telex or telecopier message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company
may, however, act upon any telegram or telex or telecopier message received by
it from the other or from any holder of a Receipt, notwithstanding that such
telegram or telex or telecopier message shall not subsequently be confirmed by
letter as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may, with
the approval of the Company which approval shall not be unreasonably withheld,
from time to time appoint one or more Depositary's Agents to act in any
respect for the Depositary for the purposes of this Deposit Agreement and may
vary or terminate the appointment of such Depositary's Agents.
SECTION 7.06. Holders of Receipts Are Parties.
Notwithstanding that holders of Receipts have not executed and delivered this
Deposit Agreement or any counterpart thereof, the holders of Receipts from
time to time shall be deemed to be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions, and be entitled to all of the
benefits, hereof and of the Receipts by acceptance of delivery of Receipts.
SECTION 7.07. Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the law of the
State of New York without giving effect to principles of conflict of laws.
SECTION 7.08. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in Exhibit
A hereto have been inserted for convenience only and are not to be regarded as
a part of this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, SunAmerica Inc. and
[_______________________________] have duly executed this Deposit Agreement as
of the day and year first above set forth and all holders of Receipts shall
become parties hereto by and upon acceptance by them of delivery of Receipts
issued in accordance with the terms hereof.
SUNAMERICA INC.
Attest:
By:_______________________ By:___________________________
Authorized Officer
[_____________________________]
Attest:
By:_______________________ By:___________________________
Authorized Signatory
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING [ONE-FIFTIETH] OF A SHARE OF
[______________________________________________] PREFERRED
STOCK
OF
SUNAMERICA INC.
(Incorporated under the Laws of the State of Maryland)
No.
[_________________________________] (the "Depositary") hereby
certifies that ____________ is the registered owner of ___________ Depositary
Shares (the "Depositary Shares"), each Depositary Share representing
[one-fiftieth] of a share of [____________________________] Preferred Stock,
[____] par value (the "Stock"), of SunAmerica Inc., a corporation duly
organized and existing under the laws of the State of Maryland (the
"Company"), and the same proportionate interest in any and all other property
received by the Depositary in respect of such shares of Stock and held by the
Depositary under the Deposit Agreement (as defined below). Subject to the
terms of the Deposit Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of the Stock
represented thereby, including the dividend, voting, liquidation and other
rights contained in the Articles Supplementary establishing the rights,
preferences, privileges and limitations of the Stock (the "Articles
Supplementary"), copies of which are on file at the office of the Depositary
at which at any particular time its business in respect of matters governed by
the Deposit Agreement shall be administered, which at the time of the
execution of the Deposit Agreement is located at
[____________________________] (the "Corporate Office").
This Depositary Receipt ("Receipt") shall not be entitled to
any benefits under the Deposit Agreement or be valid or obligatory for any
purpose unless this Receipt shall have been executed manually or, if a
Registrar for the Receipts (other than the Depositary) shall have been
appointed, by facsimile by the Depositary by the signature of a duly
authorized signatory and, if executed by facsimile signature of the
Depositary, shall have been countersigned manually by such Registrar by the
signature of a duly authorized signatory.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK.
THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE
DESCRIPTION SET FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF
THE COMPANY SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS
EXPRESSLY SET FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO
WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY
OF ANY STOCK AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT
AGREEMENT OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF
THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY
RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN
AND TO THE DEPOSITARY SHARES.
The Company will furnish to any holder of this Receipt without
charge, upon request addressed to its executive office, a full statement of
the designation, relative rights, preferences and limitations of the shares
of each authorized class, and of each class of preferred stock authorized to
be issued, so far as the same may have been fixed, and a statement of the
authority of the Board of Directors of the Company to designate and fix the
relative rights, preferences and limitations of other classes.
This Receipt is continued on the reverse hereof and the
additional provisions therein set forth for all purposes have the same effect
as if set forth at this place.
Dated:
[____________________________],
as Depositary and Registrar
By:___________________________
Authorized Signatory
[FORM OF REVERSE
OF DEPOSITARY RECEIPT]
1. The Deposit Agreement. Depositary Receipts (the
"Receipts"), of which this Receipt is one, are made available upon the terms
and conditions set forth in the Deposit Agreement, dated as of [_________],
199[_] (the "Deposit Agreement"), among the Company, the Depositary and all
holders from time to time of Receipts. The Deposit Agreement (copies of which
are on file at the Corporate Office, the office maintained by the Depositary
in the Borough of Manhattan, the City of New York which at the time of the
execution of the Deposit Agreement is located at [________________________]
(the "New York Office") and at the office of any agent of the Depositary) sets
forth the rights of holders of Receipts and the rights and duties of the
Depositary. The statements made on the face and the reverse of this Receipt
are summaries of certain provisions of the Deposit Agreement and are subject
to the detailed provisions thereof, to which reference is hereby made. In the
event of any conflict between the provisions of this Receipt and the
provisions of the Deposit Agreement, the provisions of the Deposit Agreement
will govern.
2. Definitions. Unless otherwise expressly herein provided,
all defined terms used herein shall have the meanings ascribed thereto in the
Deposit Agreement.
3. Redemption and Conversion of Stock.(*) Whenever the
Company shall elect to redeem or be required to convert shares of Stock into
shares of Common Stock in accordance with the Articles Supplementary, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary
in its capacity as Depositary not less than 5 business days' prior notice of
the proposed date of the mailing of a notice of redemption or conversion of
Stock and the simultaneous redemption or conversion of the Depositary Shares
representing the Stock to be redeemed or converted and of the number of such
shares of Stock held by the Depositary to be redeemed or converted. The
Depositary shall, as directed by the Company in writing, mail, first class
postage prepaid, notice of the redemption or conversion of Stock and the
proposed simultaneous redemption or conversion of Depositary Shares
representing the Stock to be redeemed or converted, not less than 30 and not
more than 60 days prior to the date fixed for redemption or conversion of such
Stock and Depositary Shares, to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed or converted, at the addresses of such
holders as the same appear on the records of the Depositary; provided, that if
the effectiveness of a Merger or Consolidation (as defined in the Articles
Supplementary) makes it impracticable to provide at least 30 days' notice, the
Depositary shall provide such notice as soon as practicable prior to such
effectiveness. Any such notice shall also be published in the same manner as
notices of redemption or conversion of the Stock are required to be published
pursuant to Section 3[___] of the Articles Supplementary. On the date of any
such redemption or conversion, the Depositary shall surrender the certificate
or certificates held by the Depositary evidencing the number of shares of
Stock to be redeemed or converted in the manner specified in the notice of
redemption or conversion of Stock provided by the Company pursuant to Section
3[___] of the Articles Supplementary. The Depositary shall, thereafter,
redeem or convert the number of Depositary Shares representing such redeemed
or converted Stock upon the surrender of Receipts evidencing such Depositary
Shares in the manner provided in the notice sent to record holders of
Receipts; provided, that the Depositary shall have received, upon surrendering
such certificate or certificates as aforesaid, a sufficient number of shares
of Common Stock to convert or redeem such number of Depositary Shares
(including, in the event that the Company elects pursuant to Section 3[___] of
the Articles Supplementary to exercise any option to deliver shares of Common
Stock in lieu of any cash consideration payable on the Effective Date (as
defined in the Articles Supplementary) of any Merger or Consolidation, a
number of shares of Common Stock equal to such cash consideration (as
determined in the manner set forth in the Articles Supplementary)), plus any
accrued and unpaid dividends payable with respect thereto to and including the
date of any such redemption or conversion and any other cash consideration
payable on the Effective Date of a Merger or Consolidation (other than any
dividends or other cash consideration payable on the Effective Date of a
Merger or Consolidation that the Company has elected to pay in shares of
Common Stock pursuant to Section 3[___] of the Articles Supplementary). In
case fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected by the Depositary by lot or
on a pro rata basis. Notice having been mailed and published as aforesaid,
from and after the redemption or conversion date (unless the Company shall
have failed to redeem or convert the shares of Stock to be redeemed or
converted by it upon the surrender of the certificate or certificates therefor
by the Depositary as described above), the Depositary Shares called for
redemption or subject to conversion shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the shares of Common Stock and
cash, if any, payable upon redemption or conversion upon surrender of such
Receipts) shall, to the extent of such Depositary Shares, cease and terminate.
Upon surrender in accordance with said notice of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be converted into
or redeemed for shares of Common Stock at a rate equal to [one-fiftieth] of
the number of shares of Common Stock delivered, and the holders thereof shall
be entitled to [one-fiftieth] of the cash, if any, payable, in respect of the
shares of Stock pursuant to the Articles Supplementary. The foregoing is
subject further to the terms and conditions of the Articles Supplementary.
If fewer than all of the Depositary Shares evidenced by this Receipt are
called for redemption, the Depositary will deliver to the holder of this
Receipt upon its surrender to the Depositary, together with shares of Common
Stock and all accrued and unpaid dividends to and including the date fixed for
redemption payable in respect of the Depositary Shares called for redemption,
a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt
and not called for redemption.
- ----------
(*) This section to be modified to discuss specific redemption or conversion
terms of the Stock, if any.
4. Surrender of Receipts and Withdrawal of Stock. Upon
surrender of this Receipt to the Depositary at the Corporate Office, the New
York Office or at such other offices as the Depositary may designate, and
subject to the provisions of the Deposit Agreement, the holder hereof is
entitled to withdraw, and to obtain delivery, without unreasonable delay, to
or upon the order of such holder, any or all of the Stock (but only in whole
shares of Stock) and all money and other property, if any, at the time
represented by the Depositary Shares evidenced by this Receipt; provided,
however, that, in the event this Receipt shall evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the whole
number of shares of Stock to be withdrawn, the Depositary shall, in addition
to such whole number of shares of Stock and such money and other property, if
any, to be withdrawn, deliver, to or upon the order of such holder, a new
Receipt or Receipts evidencing such excess number of whole Depositary Shares.
5. Transfers, Split-ups, Combinations. Subject to Paragraphs
6, 7 and 8 below, this Receipt is transferable on the books of the Depositary
upon surrender of this Receipt to the Depositary at the Corporate Office or
the New York Office, or at such other offices as the Depositary may designate,
properly endorsed or accompanied by a properly executed instrument of
transfer, and upon such transfer the Depositary shall sign and deliver a
Receipt or Receipts to or upon the order of the person entitled thereto,
all as provided in and subject to the Deposit Agreement. This Receipt may
be split into other Receipts or combined with other Receipts into one
Receipt evidencing the same aggregate number of Depositary Shares evidenced
by the Receipt or Receipts surrendered; provided, however, that the
Depositary shall not issue any Receipt evidencing a fractional Depositary
Share.
6. Conditions to Signing and Delivery, Transfer, etc., of
Receipts. Prior to the execution and delivery, registration of transfer,
split-up, combination, surrender or exchange of this Receipt, the delivery of
any distribution hereon or the withdrawal or deposit of Stock, the Depositary,
any of the Depositary's Agents or the Company may require any or all of the
following: (i) payment to it of a sum sufficient for the payment (or, in the
event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with respect
thereto (including any such tax or charge with respect to Stock being
deposited or withdrawn or with respect to Common Stock or other securities or
property of the Company being issued upon conversion or redemption); (ii)
production of proof satisfactory to it as to the identity and genuineness of
any signature; and (iii) compliance with such reasonable regulations, if any,
as the Depositary or the Company may establish not inconsistent with the
Deposit Agreement. Any person presenting Stock for deposit, or any holder of
this Receipt, may be required to file such proof of information, to execute
such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of this Receipt,
the registration of transfer, redemption, conversion or exchange of this
Receipt, the withdrawal of the Stock represented by the Depositary Shares
evidenced by this Receipt or the distribution of any dividend or other
distribution until such proof or other information is filed, such certificates
are executed or such representations and warranties are made.
7. Suspension of Delivery, Transfer, etc. The deposit of
Stock may be refused and the delivery of this Receipt against Stock or the
registration of transfer, split-up, combination, surrender or exchange of this
Receipt and the withdrawal of deposited Stock may be suspended (i) during any
period when the register of stockholders of the Company is closed, (ii) if any
such action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or
commission, or under any provision of the Deposit Agreement, or (iii) with the
approval of the Company, for any other reason. The Depositary shall not be
required (a) to issue, transfer or exchange any Receipts for a period
beginning at the opening of business 15 days next preceding any selection of
Depositary Shares and Stock to be redeemed and ending at the close of business
on the day of the mailing of notice of redemption of Depositary Shares or (b)
to transfer or exchange for another Receipt any Receipt evidencing Depositary
Shares called or being called for redemption, in whole or in part, or subject
to conversion except as provided in the last sentence of Paragraph 3.
8. Payment of Taxes or Other Governmental Charges. If any
tax or other governmental charge shall become payable by or on behalf of the
Depositary with respect to (i) this Receipt, (ii) the Depositary Shares
evidenced by this Receipt, (iii) the Stock (or fractional interest therein) or
other property represented by such Depositary Shares, or (iv) any transaction
referred to in Section 4.06, of the Deposit Agreement, such tax (including
transfer, issuance or acquisition taxes, if any) or governmental charge shall
be payable by the holder of this Receipt, who shall pay the amount thereof to
the Depositary. Until such payment is made, registration of transfer of this
Receipt or any split-up or combination hereof or any withdrawal of the Stock
or money or other property, if any, represented by the Depositary Shares
evidenced by this Receipt may be refused, any dividend or other distribution
may be withheld and any part or all of the Stock or other property (including
Common Stock received in connection with a conversion or redemption of Stock)
represented by the Depositary Shares evidenced by this Receipt may be sold for
the account of the holder hereof (after attempting by reasonable means to
notify such holder prior to such sale). Any dividend or other distribution so
withheld and the proceeds of any such sale may be applied to any payment of
such tax or other governmental charge, the holder of this Receipt remaining
liable for any deficiency.
9. Amendment. The form of the Receipts and any provision of
the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable. Any amendment that shall impose or increase any
fees, taxes or charges payable by holders of Receipts (other than taxes and
other governmental charges, fees and other expenses payable by holders as
provided herein or in the Deposit Agreement), or that shall otherwise prejudice
any substantial existing right of holders of Receipts, shall not become
effective as to outstanding Receipts until the expiration of 90 days after
notice of such amendment shall have been given to the record holders of
outstanding Receipts. The holder of this Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold this
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the
right, subject to the provisions of Paragraphs 3, 4, 6, 7 and 8 hereof and of
Sections 2.03, 2.06 and 2.07 and Article III of the Deposit Agreement, of the
owner of the Depositary Shares evidenced by this Receipt to surrender this
Receipt with instructions to the Depositary to deliver to the holder the Stock
and all money and other property, if any, represented thereby, except in order
to comply with mandatory provisions of applicable law.
10. Fees, Charges and Expenses. The Company will pay all
fees, charges and expenses of the Depositary, except for taxes (including
transfer taxes, if any) and other governmental charges and such charges as are
expressly provided in the Deposit Agreement to be at the expense of persons
depositing Stock, holders of Receipts or other persons.
11. Title to Receipts. It is a condition of this Receipt, and
every successive holder hereof by accepting or holding the same consents and
agrees, that title to this Receipt (and to the Depositary Shares evidenced
hereby), when properly endorsed or accompanied by a properly executed
instrument of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument; provided, however, that the Depositary
may, notwithstanding any notice to the contrary, treat the record holder hereof
at such time as the absolute owner hereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement and for all other purposes.
12. Dividends and Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to the provisions of the Deposit Agreement,
distribute to record holders of Receipts such amounts of such sums as are, as
nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders; provided, however, that
in case the Company or the Depositary shall be required by law to withhold and
does withhold from any cash dividend or other cash distribution in respect of
the Stock an amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any owner of Depositary Shares a fraction
of one cent and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
be treated as part of the next sum received by the Depositary for distribution
to record holders of Receipts then outstanding.
13. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
name Stock is registered on the books of the Company any rights, preferences
or privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions of the
Deposit Agreement, be made available by the Depositary to the record holders
of Receipts in such manner as the Company shall instruct.
14. Notice of Dividends, Fixing of Record Date. Whenever (i)
any cash dividend or other cash distribution shall become payable, or any
distribution other than cash shall be made, or any rights, preferences or
privileges shall at any time be offered, with respect to the Stock, or (ii)
the Depositary shall receive notice of any meeting at which holders of Stock
are entitled to vote or of which holders of Stock are entitled to notice or of
the mandatory conversion of, or any election on the part of the Company to
call for redemption of, any shares of Stock, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the determination of the
holders of Receipts (x) who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the
sale thereof, or (y) who shall be entitled to give instructions for the
exercise of voting rights at any such meeting or of such meeting or to receive
notice of such conversion or redemption.
15. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice,
which shall contain (i) such information as is contained in such notice of
meeting, (ii) a statement that the holders of Receipts at the close of
business on a specified record date determined as provided in Paragraph 14
will be entitled, subject to any applicable provision of law, the Articles of
Incorporation or the Articles Supplementary, to instruct the Depositary as to
the exercise of the voting rights pertaining to the Stock represented by their
respective Depositary Shares, and (iii) a brief statement as to the manner in
which such instructions may be given. Upon the written request of a holder of
this Receipt on such record date the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the Stock represented by the
Depositary Shares evidenced by this Receipt in accordance with the
instructions set forth in such request. The Company hereby agrees to take all
reasonable action that may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such Stock to be voted. In
the absence of specific instructions from the holder of this Receipt, the
Depositary will abstain from voting to the extent of the Stock represented by
the Depositary Shares evidenced by this Receipt.
16. Reports, Inspection of Transfer Books. The Depositary
shall make available for inspection by holders of Receipts at the Corporate
Office, the New York Office and at such other places as it may from time to
time deem advisable during normal business hours any reports and
communications received from the Company that are received by the
Depositary as the holder of Stock. The Depositary shall keep books at the
Corporate Office for the registration and transfer of Receipts, which books
at all reasonable times will be open for inspection by the record holders
of Receipts; provided that any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an owner of
Depositary Shares.
17. Liability of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent
nor the Registrar nor the Company shall incur any liability to any holder of
this Receipt, if by reason of any provision of any present or future law or
regulation thereunder of any governmental authority or, in the case of the
Depositary, the Registrar or any Depositary's Agent, by reason of any
provision present or future, of the Articles of Incorporation or the
Articles Supplementary or, in the case of the Company, the Depositary, the
Registrar or any Depositary's Agent, by reason of any act of God or war or
other circumstances beyond the control of the relevant party, the
Depositary, any Depositary's Agent, the Registrar or the Company shall be
prevented or forbidden from doing or performing any act or thing that the
terms of the Deposit Agreement provide shall be done or performed; nor
shall the Depositary, any Depositary's Agent, the Registrar or the Company
incur any liability to any holder of this Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act
or thing that the terms of the Deposit Agreement provide shall or may be
done or performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement except, in
the case of the Depositary, any Depositary's Agent or the Registrar, if
such exercise or failure to exercise discretion is caused by its negligence
or bad faith.
18. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. The Company assumes no obligation and shall be
subject to no liability under the Deposit Agreement or this Receipt to the
holder hereof or other persons, except to perform in good faith such
obligations as are specifically set forth and undertaken by it to perform in
the Deposit Agreement. Each of the Depositary, the Depositary's Agents and
the Registrar assumes no obligation and shall be subject to no liability under
the Deposit Agreement or this Receipt to the holder hereof or other persons,
except to perform such obligations as are specifically set forth and
undertaken by it to perform in the Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding with respect to
Stock, Depositary Shares or Receipts or Common Stock that in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company will be liable for any action or failure to act by
it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Stock for deposit, any holder of this
Receipt or any other person believed by it in good faith to be competent to
give such advice or information.
19. Termination of Deposit Agreement. Whenever so directed by
the Company, the Depositary will terminate the Deposit Agreement by mailing
notice of such termination to the record holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate the Deposit Agreement if
at any time 45 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.04 of the Deposit Agreement. Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations thereunder except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.07 and 5.08 of the
Deposit Agreement.
If any Receipts remain outstanding after the date of
termination of the Deposit Agreement, the Depositary thereafter shall
discontinue all functions and be discharged from all obligations as provided
in the Deposit Agreement, except as specifically provided therein.
20. Governing Law. The Deposit Agreement and this Receipt and
all rights thereunder and hereunder and provisions thereof and hereof shall be
governed by, and construed in accordance with, the law of the State of New
York without giving effect to principles of conflict of laws.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto the within Receipt and all rights and
interests represented by the Depositary Shares evidenced thereby, and hereby
irrevocably constitutes and appoints his attorney, to transfer
the same on the books of the within-named Depositary, with full power of
substitution in the premises.
Dated: Signature: ___________________________
NOTE: The signature to this assignment
must correspond with the name as
written upon the face of the Receipt in
every particular, without alteration or
enlargement, or any change whatever.
NUMBER THIS COMMON STOCK
CERTIFICATE
B IS
TRANSFERABLE
IN THE CITY
OF NEW YORK
OR IN LOS
ANGELES
INCORPORATED SHARES
UNDER THE
LAWS OF THE
STATE OF SEE REVERSE
MARYLAND FOR CERTAIN
DEFINITIONS
[LOGO] CUSIP
SUNAMERICA, 866930 10 0
INC.
SUNAMERICA THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE
PAR VALUE OF $1.00 EACH OF THE COMMON STOCK OF
[SUNAMERICA Sun America Inc., transferable on the books
CORPORATE of the Corporation by the holder hereof in
SEAL] person or by duly authorized Attorney upon
surrender of this Certificate properly
endorsed. This Certificate and the shares
represented hereby are issued and shall be
held subject to all the provisions of the
Articles of Incorporation and the By-Laws
of the Corporation and all amendments and
supplements thereto (copies of which are
on file with the Transfer Agent), to all of
which the holder of this Certificate, by
acceptance hereof, assents. This
Certificate is not valid until
countersigned by the Transfer Agent and
registered by the Registrar.
Witness the facsimile seal of the
Corporation and the facsimile signatures of
its duly authorized officers.
Dated:
COUNTERSIGNED AND
REGISTERED:
FIRST INTERSTATE BANK OF CALIFORNIA
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
/s/ Susan L. Harris /s/ Eli Broad
Secretary Chairman and
Chief
Executive
Officer
The Corporation is authorized to issue stock of more than one class.
The Corporation will furnish to any shareholder upon request and
without charge a full statement of the designations, preferences,
limitations and relative rights of each authorized class of stock, of the
variations in the relative rights and preferences between the shares of
each class so far as the same has been fixed and determined, and of the
authority of the Board of Directors to fix and determine the relative
rights and preferences of subsequent series. Any such request should be
directed to the Corporation, attention of its Secretary at its principal
place of business.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in UNIF GIFT MIN ACT -
common ........Custodian........
TEN ENT - as tenants by the (Cust) (Minor)
entireties
JT TEN - as joint tenants Under Uniform Gifts to Minors
with right of Act.................
survivorship and (State)
not as tenants in
common UNIF TRF MIN ACT -
.....Custodian (until age...)
(Cust)
......under Uniform Transfers
(Minor)
to Minors Act..........
(State)
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED,__________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------
| |
| |
- -------------------------------------
______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP
CODE, OF ASSIGNEE)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________ Shares
of the Stock represented by the within Certificate, and do hereby irrevocably
constitute and appoint
_____________________________________________________________________ Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated ________________________________
X_____________________________
X_____________________________
NOTICE: THE SIGNATURE(S) TO
THIS ASSIGNMENT MUST
CORRESPOND WITH THE
NAME(S) AS WRITTEN
UPON THE FACE OF THE
CERTIFICATE IN EVERY
PARTICULAR, WITHOUT
ALTERATION OR
ELARGEMENT OR ANY
CHANGE WHATEVER.
Signature(s) Guaranteed
By____________________________________
THE SIGNATURE(S) SHOULD BE
GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION, (BANKS,
STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS
WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C.
RULE 17Ad-15.
Exhibit 5.1
[LETTERHEAD OF DAVIS POLK & WARDWELL]
September 27, 1995
SunAmerica Inc.
1 SunAmerica Center
Los Angeles, California 90067-6022
Ladies and Gentlemen:
We have acted as special counsel for SunAmerica Inc., a
Maryland corporation ("SunAmerica"), and SunAmerica Capital Trust II,
SunAmerica Capital Trust III and SunAmerica Capital Trust IV, each a
statutory business trust created under the Business Trust Act of the State
of Delaware (each a "Trust" and collectively, the "Trusts"), in connection
with the preparation and filing with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the
"Act"), of a Registration Statement on Form S-3 (Registration No.
33- 62405), as amended (the "Registration Statement"), relating to
registration under the Act of up to $1,000,000,000 aggregate public
offering price (or the equivalent thereof in one or more foreign currencies
or composite currencies) of (i) unsecured debt securities (the "Debt
Securities"), which may be issued pursuant to a Senior Indenture dated as
of April 15, 1993 between SunAmerica and First National Bank of Chicago, as
Trustee (as amended or supplemented, the "Senior Indenture"), a
Subordinated Indenture dated as of April __, 1993 to be entered into
between SunAmerica and First National Bank of Chicago, as Trustee (as
amended or supplemented, the "Subordinated Indenture") or a Junior
Subordinated Indenture dated as of March 15, 1995 between SunAmerica and
The First National Bank of Chicago, as trustee (the "Indenture Trustee")
(as amended or supplemented from time to time, the "Junior Subordinated
Indenture" and, together with the Senior Indenture and the Subordinated
Indenture, the "Indentures"), (ii) shares of preferred stock, without par
value (the "Preferred Stock"), which may be represented by depositary
shares (the "Depositary Shares") evidenced by depositary receipts (the
"Receipts"); (iii) shares of Common Stock of SunAmerica, $1.00 par value
per share (the "Common Stock"); (iv) warrants to purchase Debt Securities,
Preferred Stock, Common Stock or other securities or rights (the
"Warrants"); and (v) guarantees (the "Guarantees") of preferred securities
to be issued by the Trusts, as described below.
We will also act as special counsel to SunAmerica and the
Trusts in connection with offerings from time to time of Preferred
Securities of the Trusts (the "Preferred Securities") which are being
registered under the Registration Statement. The Preferred Securities are
to be issued by each Trust pursuant to an Amended and Restated Declaration
of Trust (the "Amended Declaration") to be filed with the Secretary of
State of the State of Delaware by the Trustees of the relevant Trust. The
Preferred Securities are to be guaranteed by SunAmerica pursuant to
Guarantees issued under a Guarantee Agreement (the "Guarantee Agreement")
to be entered into by SunAmerica in respect of the Preferred Securities.
The forms of Preferred Securities, Amended Declaration and Guarantee
Agreement are filed or incorporated by reference as exhibits to the
Registration Statement.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary or advisable for the purpose of rendering this opinion.
Based on the foregoing, we are of the opinion that:
1. Assuming that the Subordinated Indenture, any Debt
Securities and any supplemental indenture to be entered into in
connection with the issuance of such Debt Securities have been
duly authorized, when (i) the Registration Statement has become
effective under the Act, (ii) a supplemental indenture in respect
of the Debt Securities has been duly executed and delivered, (iii)
the terms of the Debt Securities have been duly established in
accordance with the applicable Indenture and the applicable
supplemental indenture relating to such Debt Securities so as not
to violate any applicable law or result in a default under or
breach of any agreement or instrument binding upon SunAmerica and
so as to comply with any requirement or restriction imposed by any
court or governmental or regulatory body having jurisdiction over
SunAmerica and (iv) the Debt Securities have been duly executed
and authenticated in accordance with the applicable Indenture and
the applicable supplemental indenture relating to such Debt
Securities and duly issued and delivered by SunAmerica, the Debt
Securities will constitute valid and binding obligations of
SunAmerica, enforceable in accordance with their terms, except as
(a) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or
other similar laws now or hereinafter in effect relating to or
affecting the enforcement of creditors' rights generally and (b)
the availability of equitable remedies may be limited by equitable
principles of general applicability (regardless of whether
considered in a proceeding at law or in equity).
2. Assuming that the Guarantees have been duly authorized,
when (i) the Registration Statement has become effective under the
Act, (ii) the applicable Guarantee Agreement has been duly
executed and delivered so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument
binding upon SunAmerica and so as to comply with any requirement
or restriction imposed by any court or governmental or regulatory
body having jurisdiction over SunAmerica and (iii) the Preferred
Securities have been duly issued and delivered by the applicable
Trust as contemplated by the Registration Statement and any
prospectus supplement relating thereto, the Guarantees will
constitute valid and binding obligations of SunAmerica,
enforceable in accordance with their terms, except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or similar laws
now or hereinafter in effect relating to or affecting the
enforcement of creditors' rights generally and (b) the
availability of equitable remedies may be limited by equitable
principles of general applicability (regardless of whether
considered in a proceeding at law or in equity).
3. Assuming that (i) the Warrant Agreement relating to the
Warrants (the "Warrant Agreement") has been duly executed and
delivered, (ii) the terms of the Warrants and of their issuance and
sale have been duly established in conformity with the Warrant
Agreement relating to such Warrants so as not to violate any
applicable law or result in a default under or breach of any
agreement or instrument binding upon SunAmerica and so as to comply
with any requirement or restriction imposed by any court or
governmental or regulatory body having jurisdiction over SunAmerica
and (iii) the Warrants have been duly executed and countersigned in
accordance with the Warrant Agreement relating to such Warrants, and
issued and sold in the form and in the manner contemplated in the
Registration Statement and any prospectus supplement relating
thereto, such Warrants will constitute valid and binding obligations
of SunAmerica, enforceable in accordance with their terms, except as
(a) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium and other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, and (b) the availability of equitable
remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding at
law or in equity).
4. Assuming that (i) the Deposit Agreement relating to the
Depositary Shares has been duly executed and delivered, (ii) the
terms of the Depositary Shares and of their issuance and sale have
been duly established in conformity with the Deposit Agreement
relating to such Depositary Shares so as not to violate any
applicable law or result in a default under or breach of any
agreement or instrument binding upon SunAmerica and so as to
comply with any requirement or restriction imposed by any court or
governmental or regulatory body having jurisdiction over
SunAmerica, (iii) the terms of the Preferred Stock have been duly
and properly authorized for issuance and Articles Supplementary to
the Charter of SunAmerica classifying the Preferred Stock and
setting forth the terms thereof have been filed, (iv) such shares
of Preferred Stock have been duly issued and paid for in the
manner contemplated in the Registration Statement and any
prospectus supplement relating thereto and (v) the Receipts
evidencing the Depositary Shares are duly issued against the
deposit of the Preferred Stock in accordance with the Deposit
Agreement, such Receipts will be validly issued and will entitle
the holders thereof to the rights specified therein and in the
Deposit Agreement.
We are members of the Bar of the State of New York and our
opinion is limited to the Federal laws of the United States and the laws of
the State of New York.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of our name under the headings
"Legal Matters" in the Prospectuses forming a part of the Registration
Statement. In giving such consent, we do not thereby concede that we are
within the category of persons whose consent is required under Section 7 of
the Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
Exhibit 5.3
[Letterhead of Richards, Layton & Finger]
September 27, 1995
SunAmerica Capital Trust II
SunAmerica Capital Trust III
SunAmerica Capital Trust IV
c/o SunAmerica Inc.
1 SunAmerica Center
Los Angeles, California 90067-6022
Re: SunAmerica Capital Trust II,
SunAmerica Capital Trust III
and SunAmerica Capital Trust IV
Ladies and Gentlemen:
We have acted as special Delaware counsel for SunAmerica
Inc., a Maryland corporation ("SunAmerica"), SunAmerica Capital Trust II, a
Delaware business trust ("Trust II"), SunAmerica Capital Trust III, a
Delaware business trust ("Trust III"), and SunAmerica Capital Trust IV, a
Delaware business trust ("Trust IV")(Trust II, Trust III and Trust IV are
hereinafter collectively referred to as the "Trusts" and sometimes
hereinafter individually referred to as a "Trust"), in connection with the
matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of Trust II, dated as of August
31, 1995, as filed in the office of the Secretary of the State of Delaware
(the "Secretary of State") on September 6, 1995;
(b) The Certificate of Trust of Trust III, dated as of August
31, 1995, as filed with the Secretary of State on September 6, 1995;
(c) The Certificate of Trust of Trust IV, dated as of August
31, 1995, as filed with the Secretary of State on September 6, 1995 (the
Certificates of Trust described in items (a)-(c) are hereinafter collectively
referred to as the "Certificates of Trust");
(d) The Declaration of Trust of Trust II, dated as of August
31, 1995, between SunAmerica and the trustees of Trust II named therein;
(e) The Declaration of Trust of Trust III, dated as of August
31, 1995, between SunAmerica and the trustees of Trust III named therein;
(f) The Declaration of Trust of Trust IV, dated as of August
31, 1995, between SunAmerica and the trustees of Trust IV named therein;
(g) The Amendment No. 1 to the Registration Statement (the
"Registration Statement") on Form S-3, including a preliminary prospectus
(the "Prospectus"), relating to the Preferred Securities of the Trusts
representing preferred undivided beneficial interests in the assets of the
Trusts (each, a "Preferred Security" and collectively, the "Preferred
Securities"), filed by SunAmerica and the Trusts with the Securities and
Exchange Commission on September 27, 1995;
(h) A form of Amended and Restated Declaration of Trust for
each of the Trusts, to be entered into between SunAmerica, the trustees of the
Trust named therein, and the holders, from time to time, of the undivided
beneficial interests in the assets of the Trust (including the exhibits
thereto) (collectively, the "Declarations and individually, a "Declaration"),
attached as an exhibit to the Registration Statement; and
(i) A Certificate of Good Standing for each of the Trusts,
dated September 27, 1995, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Declarations.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (i) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (i) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that
is inconsistent with the opinions stated herein. We have conducted no
independent factual investigation of our own but rather have relied solely
upon the foregoing documents, the statements and information set forth therein
and the additional matters recited or assumed herein, all of which we have
assumed to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of
the Declarations constitutes the entire agreement among the parties thereto
with respect to the subject matter thereof, including with respect to the
creation, operation and termination of the applicable Trust, and that the
Declarations and the Certificates of Trust are in full force and effect and
have not been amended, (ii) except to the extent provided in paragraph 1
below, the due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its organization or formation, (iii)
the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the
Trusts (collectively, the "Preferred Security Holders") of a Preferred
Security, in accordance with the Declarations and the Registration Statement,
and (vii) that the Preferred Securities are issued and sold to the Preferred
Security Holders in accordance with the Declarations and the Registration
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our
opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware was we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly
existing in good standing as a business trust under the Business Trust Act.
2. The Preferred Securities of each trust will represent
valid and, subject to the qualifications set forth in paragraph 3 below,
fully paid and nonassessable undivided beneficial interests in the assets
of the applicable Trust.
3. The Preferred Security Holders, as beneficial owners of
the applicable Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware. We
note that the Preferred Security Holders may be obligated pursuant to the
applicable Declaration, to (i) provide indemnity and security in connection
with and pay taxes or governmental charges arising from transfers of
Preferred Security Certificates and the issuance of replacement Preferred
Security Certificates, (ii) provide security and indemnity in connection
with requests of or directions to the Property Trustee to exercise its
rights and remedies under the applicable Declaration, and (iii) undertake
as a party litigant to pay costs in any suit for the enforcement of any
right or remedy under the applicable Declaration or against the Property
Trustee, to the extent provided in the applicable Declaration.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. We
hereby consent to the use of our name under the heading "Legal Matters" in
the Prospectus. In giving the foregoing consents, we do not thereby admit
that we come within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except
as stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other person for any
purpose.
Very truly yours,
Richards, Layton & Finger
Exhibit 23.2
[Letterhead of SunAmerica, Inc.]
September 27, 1995
SunAmerica, Inc.
1 SunAmerica Center
Los Angeles, California 90067-6022
Re: Letter of Consent
Ladies and Gentlemen:
I hereby consent to the use of my name under the headings
"Legal Matters" in the Prospectuses forming a part of the Registration
Statement. In giving such consent, I do not thereby concede that I am within
the category of persons whose consent is required under Section 7 of the Act
or the Rules and Regulations of the Commission thereunder.
Very truly yours,
Susan L. Harris
