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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October 19, 1995
SUNAMERICA INC.
(Exact name of registrant as specified in charter)
Maryland 1-4618 86-0176061
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1 SunAmerica Center, Los Angeles, California 90067-6022
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (310) 772-6000
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ITEM 5. Other Events.
Exhibits are filed herewith in connection with the Registration
Statement on Form S-3 (File No. 33-62405) filed by SunAmerica Inc. (the
"Company") with the Securities and Exchange Commission relating to the
Company's Debt Securities, Common Stock, Preferred Stock and Warrants to
Purchase Debt Securities, Common Stock and Preferred Stock.
ITEM 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
EXHIBITS
Exhibit 1.1 - Distribution Agreement dated October 19, 1995
between the Company and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Chase Securities, Inc., Goldman, Sachs & Co., J.P.
Morgan Securities Inc. and Paine Webber Incorporated
Exhibit 4.5 - Form of Fixed Rate Definitive Medium-Term Note,
Series 2
Exhibit 4.6 - Form of Fixed Rate Global Medium-Term Note, Series 2
Exhibit 4.7 - Form of Floating Rate Definitive Medium-Term Note,
Series 2
Exhibit 4.8 - Form of Floating Rate Global Medium-Term Note,
Series 2
Exhibit 5.1 - Opinion of Piper & Marbury L.L.P. as to the due
authorization of the Company's Medium Term Notes,
Series 2
Exhibit 5.2 - Opinion of Davis Polk & Wardwell as to the validity
of the Company's Medium Term Notes, Series 2.
Exhibit 23.1 - Consent of Piper & Marbury L.L.P. (included in
Exhibit 5.1)
Exhibit 23.2 - Consent of Davis Polk & Wardwell (included in
Exhibit 5.2)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SUNAMERICA INC.
/s/ Susan L. Harris
Date: October 19, 1995 By: ____________________
Susan L. Harris
Vice President and
Secretary
EXHIBIT 1.1
SUNAMERICA INC.
Medium-Term Notes, Series 2 Due
Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
October 19, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
CHASE SECURITIES, INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
PAINEWEBBER INCORPORATED
c/o Merrill Lynch & Co.
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Dear Sirs:
SunAmerica Inc., a Maryland corporation (the "Company"),
confirms its agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Chase Securities, Inc., Goldman, Sachs & Co., J.P.
Morgan Securities Inc. and PaineWebber Incorporated (each, an "Agent" and
collectively, the "Agents") with respect to the issue and sale by the Company
of its Medium-Term Notes, Series 2 described herein (the "Notes"). The Notes
are to be issued pursuant to the Senior Indenture (the "Indenture") dated as
of April 15, 1993, as supplemented by the Supplemental Indenture (the
"Supplemental Indenture") dated as of June 28, 1993, between the Company and
The First National Bank of Chicago, as trustee (the "Trustee"). As of the
date hereof, the Company has authorized the issuance and sale of up to U.S.
$300,000,000 aggregate initial offering price (or its equivalent, based upon
the applicable exchange rate at the time of issuance, in such foreign or
composite currencies as the Company shall designate at the time of issuance) of
Notes pursuant to the terms of this Agreement. It is understood, however,
that the Company may from time to time authorize the issuance of additional
Notes and that such additional Notes may be sold pursuant to the terms of this
Agreement, all as though the issuance of such Notes were authorized as of the
date hereof.
The Company and certain related entities have filed with the
Securities and Exchange Commission (the "SEC") a registration statement on
Form S-3 (No. 33-62405 and 33-62405-01, 02 and 03) for the registration of debt
securities, including the Notes, under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accordance
with Rule 415 of the rules and regulations of the SEC under the 1933 Act (the
"1933 Act Regulations"). Such registration statement has been declared
effective by the SEC and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit)
and the prospectus constituting a part thereof (in the case of the registration
statement previously filed, excluding the prospectus relating to junior
subordinated debt securities of the Company and preferred securities of
SunAmerica Capital Trust II, III and IV), supplemented by any prospectus
supplements relating to the Notes, including all documents incorporated therein
by reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that if
any revised prospectus shall be provided to the Agents by the Company for use
in connection with the offering of the Notes which is not required to be filed
by the Company pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Agents for such use.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions
stated herein, including Section 16 and the next sentence of this paragraph
(a), the Company hereby agrees that the Agents will be its agents for the
purpose of soliciting and receiving offers to purchase Notes from the Company.
Notwithstanding any provision of this Agreement to the contrary, the Company
shall have the right to sell Notes directly on its own behalf, and may in its
discretion solicit and accept offers to purchase and accept unsolicited offers
to purchase Notes directly on its own behalf or from any broker or dealer not
a party to this Agreement (whether acting as principal or as agent); provided,
that any agent engaged by the Company in connection with a specific purchase
of Notes shall be engaged on terms substantially similar (including the same
commission schedule) to the applicable terms of this Agreement. Each Agent
acknowledges that, in the case of any sale of Notes by the Company not
resulting from a solicitation made or an offer to purchase received by such
Agent, or arising in connection with a purchase by such Agent as principal, no
commission shall be payable by the Company to such Agent with respect to such
sale.
(b) Sale of Notes. The Company shall not sell or
approve the solicitation of purchases of Notes in excess of the amount which
shall be authorized by the Company from time to time or in excess of the
principal amount of Notes registered pursuant to the Registration Statement.
The Agents will have no responsibility for maintaining records with respect to
the aggregate principal amount of Notes sold, or of otherwise monitoring the
availability of Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have
any obligation to purchase Notes from the Company as principal, but one or
more Agents may agree from time to time to purchase Notes as principal. The
Agents are authorized to engage the services of any other broker or dealer in
connection with the offer or sale of the Notes purchased by one or more of the
Agents as principal for resale to others but are not authorized to appoint
sub-agents. Any purchase of Notes by one or more Agents as principal shall
be made in accordance with Section 3(a) hereof.
(d) Solicitations as Agent. Each Agent will
communicate to the Company, orally or in writing, each offer to purchase Notes
solicited by such Agent on an agency basis, other than those offers rejected
by such Agent. The Agents shall have the right, in their discretion reasonably
exercised, to reject any proposed purchase of Notes, as a whole or in part,
and any such rejection shall not be deemed a breach of the Agents' agreement
contained herein. The Company shall have the sole right to accept offers to
purchase Notes and may reject any proposed purchase of the Notes, in whole or
in part. The Agents shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by the Agents and accepted by the Company. The Agents shall not
have any liability to the Company in the event any such agency purchase is not
consummated for any reason. If the Company shall default on its obligation to
deliver Notes to a purchaser whose offer it has accepted, the Company shall
(i) hold the Agents harmless against any loss, claim or damage arising from or
as a result of such default by the Company and (ii) notwithstanding such
default, pay to each Agent any commission to which it would be entitled in
connection with such sale.
(e) Reliance. The Company and the Agents agree that
any Notes purchased by an Agent shall be purchased, and any Notes the
placement of which an Agent arranges shall be placed by the Agent, in reliance
on the representations, warranties, covenants and agreements of the Company
contained herein and on the terms and conditions and in the manner provided
herein.
SECTION 2. Representations and Warranties.
The Company represents and warrants to the Agents as of the
date hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (whether from an Agent as principal or through an Agent
as agent), as of the date of each delivery of Notes (whether to an Agent as
principal or through an Agent as agent) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (each of the times referenced above being
referred to herein as a "Representation Date") as follows:
(a) At the time the Registration Statement became
effective, the Registration Statement complied, and as of the applicable
Representation Date will comply, in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and
the rules and regulations of the SEC promulgated thereunder. The Registration
Statement, at the time it became effective, did not, and at each time
thereafter at which any amendment to the Registration Statement becomes
effective, will not, include an 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. The Prospectus, as of the date hereof does
not, and as of each Representation Date will not, contain an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any Agent
expressly for use in the Registration Statement or Prospectus or to that part
of the Registration Statement that constitutes the Statement of Eligibility
and Qualification (Form T-1) under the 1939 Act of the Trustee.
(b) The documents incorporated by reference in the
Prospectus at the time they were or hereafter are filed with the SEC, complied
or when so filed will comply, as the case may be, in all material respects
with the requirements of the 1934 Act and the rules and regulations
promulgated thereunder (the "1934 Act Regulations").
(c) The financial statements and supporting
schedules of the Company included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries as of the dates
indicated and the results of their operations for the periods specified;
except as otherwise stated in the Registration Statement or the Prospectus,
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis.
(d) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, and
except as otherwise stated or contemplated therein, (A) 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 SunAmerica Life Insurance Company, 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") and the Company's other subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, and (B) there has
been no transaction or agreement entered into by the Company or any of the
Subsidiaries which is material to the Company and its subsidiaries, taken as a
whole, other than those entered into in the ordinary course of business.
(e) 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 described in the 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,
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, taken as a
whole.
(f) Each of 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 described in the 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, taken as a whole; all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and
validly issued and is fully paid and nonassessable, and all of such issued and
outstanding capital stock that is owned directly or through subsidiaries by
the Company is owned free and clear of any mortgage, pledge, lien or other
encumbrance (except for Permitted Liens (as defined in the Indenture) or as
otherwise permitted by the Indenture).
(g) 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 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 Company and its subsidiaries, taken as
a whole; and neither 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 Company and
its subsidiaries, taken as a whole.
(h) This Agreement has been duly authorized,
executed and delivered by the Company.
(i) The Indenture has been duly qualified under the
1939 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.
(j) The Notes have been duly authorized for
issuance, offer and sale pursuant to this Agreement, and, when issued,
authenticated and delivered pursuant to the provisions of this Agreement and
the Indenture against payment of the consideration therefor specified in the
Prospectus or agreed upon pursuant to the provisions of this Agreement, the
Notes will constitute valid and binding obligations 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; the Notes will conform in all material respects to all
statements relating thereto contained in the Prospectus and will be entitled
to the benefits of the Indenture.
(k) Neither the Company nor any of the Subsidiaries
is in violation of its charter or bylaws or in default in the performance or
observance 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 Company or any of its Subsidiaries is a
party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or 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 Company and its
subsidiaries, taken as a whole; the execution and delivery by the Company of,
and the performance by the Company of its obligations under, this Agreement,
the Indenture and the Notes will not contravene any provision of applicable
law or the articles of incorporation or by-laws of the Company, nor will it
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 Company or any of the Subsidiaries pursuant to, any agreement or
other instrument binding upon the Company or any 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 Subsidiary, 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
Company and its subsidiaries, taken as a whole, 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 and the Notes, except such as may be required by
the 1933 Act, the 1933 Act Regulations, the securities or Blue Sky or
insurance securities laws of the various states in connection with the offer
and sale of the Notes or such as have been obtained.
(l) 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 by the 1933 Act, the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations to be described in the
Registration Statement or the Prospectus and are not so described; there are
no contracts or other documents that are required by the 1933 Act, the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations to be filed as exhibits
to the Registration Statement or to any documents incorporated by reference
therein that are not filed as so required; and all pending legal or
governmental proceedings to which 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 Company
or any of its subsidiaries, are, considered in the aggregate, not material to
the Company and its subsidiaries, taken as a whole.
(m) The Company has complied with all the provisions
of Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(n) As of the date of this Agreement, the Company's
medium-term note program has been rated Baa1 by Moody's Investors Service,
Inc. and A by Standard & Poor's Ratings Group. As of the date of any
acceptance by the Company of any offer to purchase Notes and on each
Settlement Date, as the case may be, the Company's medium-term note program
has been rated by Moody's Investors Service and Standard & Poor's Ratings
Group.
Any certificate signed by any director or officer of the
Company and delivered to an Agent or to counsel for the Agents in connection
with a sale of Notes through an Agent as agent or the sale of Notes to an
Agent as principal shall be deemed a representation and warranty by the Company
to such Agent or Agents as to the matters covered thereby on the date of such
certificate.
SECTION 3. Purchases as Principal; Solicitations as Agents.
(a) Purchases as Principal. Each sale of Notes to
an Agent as principal shall be made in accordance with terms agreed upon by
one or more Agents and the Company (which terms shall be agreed upon either
(i) in writing or (ii) orally, with written confirmation prepared by the Agent
or Agents making such purchase and promptly delivered to the Company). An
Agent's commitment to purchase Notes as principal shall be deemed to have been
made on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each such purchase of Notes by any Agent shall be made by such Agent with the
intention of reselling them as soon as practicable, in the sole judgment of
such Agent. Each such purchase of Notes, unless otherwise agreed, shall be at
a discount equivalent to the applicable commission set forth in Schedule A
hereto. The Agents may engage the services of any other broker or dealer in
connection with the resale of Notes purchased as principal and may allow any
portion of the discount received in connection with such purchases from the
Company to such brokers and dealers. The Company shall be advised by one or
more Agents when a purchase of Notes is to be made by such Agents as principal
and at the time of agreement as to the terms of any such purchase, the Agent
or Agents making such purchase shall specify any requirements for the
stand-off agreement, officer's certificate, opinion of counsel and comfort
letter pursuant to Sections 4(l), 7(b), 7(c) and 7(d) hereof, respectively.
(b) Solicitations as Agents. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions set forth herein and in the Prospectus, when agreed by the Company
and one or more Agents, each such Agent, as an agent of the Company, will use
its reasonable efforts to solicit offers to purchase the Notes upon terms
acceptable to the Company at such times and in such amounts as the Company
shall from time to time specify. All Notes sold through one or more Agents as
agents will be sold at 100% of their principal amount unless otherwise agreed
to by the Company and such Agent or Agents.
The Company reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through the Agents, as agents,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, the Agents will forthwith suspend solicitation
of purchases from the Company until such time as the Company has advised the
Agents that such solicitation may be resumed. While such solicitation is
suspended, the Company shall not be required to deliver any certificates,
opinions or letters pursuant to Section 7 hereof; provided, however, that if
the Company shall thereafter advise the Agents that such solicitation may be
resumed, the Company shall deliver or cause to be delivered to each Agent any
certificate, opinion or letter that is requested by such Agent and that would
have been required during the period of suspension were it not for this
paragraph, except that if, during the period of suspension, the Company shall
have filed an Annual Report on Form 10-K, no Agent shall be entitled to
receive any such certificate, opinion or letter relating to amendments or
supplements to the Registration Statement or the Prospectus made by means of
any filing by the Company pursuant to the 1934 Act prior to the date of filing
of such Annual Report on Form 10-K; and provided, further, that if, at the
time such solicitation is suspended, any Agent owns Notes purchased by it as
principal pursuant to this Agreement, the Company shall be required to
continue to deliver such certificates, opinions and letters to such Agent
during the period of suspension until the earlier of (i) such time as such
Agent no longer owns any of such Notes or (ii) 180 days from the last date on
which any of such Notes were purchased from the Company by such Agent (except
that the Company shall, at the request of such Agent, deliver such
certificates, opinions and letters after the date specified in clause (ii),
but not after the date specified in clause (i), if such Agent, notwithstanding
the provisions of Section 10, pays all expenses incident to the preparation
and delivery of the certificates, opinions and letters that the Company is
required to deliver solely as a consequence of this parenthetical).
The Company agrees to pay each Agent a commission, in the
form of a discount, equal to the applicable percentage of the principal amount
of each Note sold by the Company as a result of a solicitation made by such
Agent as set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price,
interest rate or formula, maturity date and other terms of the Notes (as
applicable) specified in Exhibit A hereto shall be agreed upon by the Company
and one or more Agents and set forth in a pricing supplement to the Prospectus
to be prepared in connection with each sale of Notes. Except as may be
otherwise provided in such supplement to the Prospectus, the Notes will be
issued in denominations of U.S $1,000 or any larger amount that is an integral
multiple of U.S $1,000. Administrative procedures with respect to the sale of
Notes shall be agreed upon from time to time by the Agents, the Company and
the Trustee (the "Procedures"). The Agents and the Company agree to perform
the respective duties and obligations specifically provided to be performed
by them in the Procedures set forth in Exhibit B hereto.
SECTION 4. Covenants of the Company.
The Company covenants with each Agent as follows:
(a) The Company will notify the Agents immediately
(i) of the effectiveness of any amendment to the Registration Statement, (ii)
of the transmittal to the SEC for filing of any supplement to the Prospectus
or any document to be filed pursuant to the 1934 Act which will be
incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the SEC with respect to the Registration Statement or the
Prospectus, (iv) of any request by the SEC for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (v) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose, (vi) of the issuance by any state
securities commission or other regulatory authority of any order suspending
the qualification or the exemption from qualification of the Notes under state
securities or Blue Sky laws or the initiation of any proceedings for that
purpose and (vii) of any change in (or withdrawal of) the rating assigned by
any nationally recognized statistical rating organization to any debt
securities of the Company or the public announcement by any nationally
recognized statistical rating organization that it has under surveillance or
review, with possible negative implications, its rating of any debt securities
of the Company. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) The Company will furnish the Agents with copies
of any additional registration statements with respect to the registration of
additional Notes, any amendments to the Registration Statement or any
amendments or supplements to the Prospectus (other than an amendment or
supplement providing solely for a change in the interest rates of Notes or
made by the filing of documents pursuant to the 1934 Act) a reasonable amount
of time prior to such proposed filing for their review and comment.
(c) The Company will deliver to the Agents as many
conformed copies of the Registration Statement as originally filed and of each
amendment thereto as the Agents may reasonably request. The Company will
furnish to each Agent as many copies of the Prospectus (as amended or
supplemented) as such Agent shall reasonably request so long as such Agent is
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes.
(d) The Company will prepare, with respect to any
Notes to be sold through or to one or more Agents pursuant to this Agreement,
a pricing supplement with respect to such Notes in a form previously approved
by such Agent or Agents and will file such pricing supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the SEC
on the fifth business day after the date on which such pricing supplement is
first used.
(e) Except as otherwise provided in the last
paragraph of this Section, if at any time during the term of this Agreement
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the Prospectus not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, notice shall be promptly given, and
confirmed in writing, to each of the Agents to cease the solicitation of
offers to purchase the Notes in the Agents' capacity as agents and to cease
sales of any Notes the Agents may then own as principal and, if so notified by
the Company, the Agents shall forthwith suspend such solicitation and sales.
If any Agent then owns Notes purchased by it as principal pursuant to this
Agreement or has agreed to purchase Notes as principal pursuant to this
Agreement, the Company will forthwith amend or supplement the Registration
Statement and the Prospectus, whether by filing documents pursuant to the 1934
Act, the 1933 Act or otherwise, so that, as so amended or supplemented, the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
to make the Registration Statement and Prospectus comply with such
requirements; the Company will furnish to the Agents a reasonable number of
copies of any amendment or supplement to the Registration Statement or
Prospectus.
(f) Except as otherwise provided in the last
paragraph of this Section, on or prior to the date on which there shall be
released to the general public interim financial statement information related
to the Company with respect to each of the first three quarters of any fiscal
year or preliminary financial statement information with respect to any fiscal
year, the Company shall furnish such information to the Agents, confirmed in
writing, and shall cause the Prospectus to be amended or supplemented to
include or incorporate by reference financial information with respect thereto
and corresponding information for the comparable period of the preceding
fiscal year, as well as such other information and explanations as shall be
necessary for an understanding thereof or as shall be required by the 1933 Act
or the 1933 Act Regulations.
(g) Except as otherwise provided in the last
paragraph of this Section, on or prior to the date on which there shall be
released to the general public financial information included in or derived
from the audited financial statements of the Company for the preceding fiscal
year, the Company shall cause the Registration Statement and the Prospectus to
be amended, whether by the filing of documents pursuant to the 1934 Act, the
1933 Act or otherwise, to include or incorporate by reference such audited
financial statements and the report or reports, and consent or consents to
such inclusion or incorporation by reference, of the independent accountants
with respect thereto, as well as such other information and explanations as
shall be necessary for an understanding of such financial statements or as
shall be required by the 1933 Act or the 1933 Act Regulations.
(h) The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, if the fiscal quarter referred to below
is the last fiscal quarter of the Company's fiscal year, and otherwise 45 days
after the close of the period covered thereby, an earnings statement (in form
and in a manner complying with the provisions of Rule 158 under the 1933 Act
Regulations) covering each twelve-month period beginning, in each case, not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in such Rule 158) of the Registration Statement
with respect to each sale of Notes.
(i) The Company will endeavor, in cooperation with
the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents shall reasonably request (with a good faith intent at that time to
offer or sell the Notes in such jurisdiction); provided, however, that the
Company shall not be obligated to qualify as a foreign corporation or to
execute a general consent as to service of process in any jurisdiction in
which it is not so qualified or to make any undertakings with respect to the
conduct of its business therein. In each jurisdiction in which the Notes have
been so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for so long as may be required in connection with the distribution of
the Notes.
(j) The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(k) The Company will use the net proceeds received
by it from each sale of the Notes in the manner specified in the Prospectus
under "Use of Proceeds."
(l) If specified by an Agent in connection with a
purchase by it of Notes as principal, between the date of the agreement to
purchase such Notes and the Settlement Date with respect to such purchase, the
Company will not, without such Agent's prior written consent, offer or sell,
or enter into any agreement to sell, any debt securities of the Company (other
than the Notes that are to be sold pursuant to such agreement, debt securities
previously agreed to be sold by the Company of which such Agent was advised by
the Company prior to the time of such agreement to purchase and commercial
paper in the ordinary course of business).
The Company shall not be required to comply with the
provisions of subsections (e), (f) or (g) of this Section during any period
from the time (i) each Agent shall have suspended solicitation of purchases of
the Notes in its capacity as agent pursuant to a request from the Company and
(ii) no Agent shall then hold any Notes purchased by it as principal pursuant
hereto, until the time the Company shall determine that solicitation of
purchases of the Notes should be resumed or one or more Agents shall
subsequently purchase Notes from the Company as principal pursuant hereto.
SECTION 5. Conditions of Obligations.
The obligations of each Agent to purchase Notes as principal
and to solicit offers to purchase the Notes as agent of the Company, and the
obligations of any purchasers of the Notes sold through one or more Agents as
agents, will be subject to the accuracy of the representations and warranties
of the Company herein contained and to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the
provisions hereof in connection with the sale of such Notes, to the performance
by the Company of its obligations hereunder and to the following further
conditions:
(a) Legal Opinions. On the date hereof, the Agents
shall have received the following legal opinions, dated as of the date hereof
and in form and substance satisfactory to the Agents:
(1) The opinion of Piper & Marbury LLP, counsel to
the Company, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good standing under
the laws of 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) Each of this Agreement, the Indenture
and the Supplemental Indenture has been duly authorized, executed
and delivered by the Company;
(iii) The Notes, in the forms certified by
the Company as of the date hereof, 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, this Agreement, the Indenture, the Supplemental Indenture
and the Notes will not contravene any provision of any material
applicable law of the State of Maryland or the charter or by-laws
of the Company (except that no opinion need be expressed with
respect to Maryland securities or Blue Sky laws).
(2) The opinion of Susan L. Harris, Esq., Vice
President and General Counsel - Corporate Affairs of the Company, 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 is in good standing in each
jurisdiction in which such qualification is required, except where
the failure to so qualify and 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, taken as a whole.
(ii) Anchor National Life Insurance Company
is validly existing as a corporation in good standing under the
laws of the State of California and has the corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and the
Prospectus. SunAmerica Life Insurance Company is validly existing
as a corporation in good standing under the laws of the State of
Arizona. Nothing has come to the attention of such counsel to
lead such counsel to believe that any of SunAmerica Life Insurance
Company, 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, taken as a whole. All of the issued and
outstanding capital stock of each Subsidiary that is owned
directly or through subsidiaries by the Company is owned free and
clear, to the best of such counsel's knowledge and information, of
any mortgage, pledge, lien or other encumbrance (except for
Permitted Liens (as defined in the Indenture) or as otherwise
permitted by the Indenture).
(iii) To the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement is in effect under the 1933 Act, and no
proceedings for such purpose are pending before or threatened by
the SEC.
(iv) At the time the Registration Statement
became effective, the Registration Statement and at the date of
such opinion, the Prospectus (other than the financial statements,
supporting schedules and other financial data included or
incorporated by reference therein, as to which no opinion need be
rendered) appeared on its face to be appropriately responsive in
all material respects to the requirements of the 1933 Act and the
1933 Act Regulations.
(v) Each document filed pursuant to the
1934 Act and incorporated by reference in the Prospectus, at the
time it was filed or last amended (other than financial
statements, supporting schedules and other financial data included
or incorporated by reference therein, as to which no opinion need
be rendered), appeared on its face to be appropriately responsive
in all material respects to the requirements of the 1934 Act and
the 1934 Act Regulations.
(vi) To the best of such counsel's knowledge
and information, there are no statutes, regulations, contracts or
other documents required to be described in the Registration
Statement or the Prospectus which are not described as required,
and there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the Registration
Statement, other than those disclosed therein.
(vii) The execution and delivery by the
Company of, and the performance by the Company of its obligations
under, this Agreement, the Indenture and the Notes will not
contravene any provision of any material applicable law or the
articles of incorporation or by-laws of the Company, nor will it
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 Company or any
Subsidiary pursuant to, any agreement or other instrument binding
upon the Company or any 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 Subsidiary.
(viii) 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 and the Notes, except such as
may be required under the 1933 Act, the 1933 Act Regulations, or
state securities or Blue Sky or insurance securities laws or
except as have been obtained.
(3) The opinion of Davis Polk & Wardwell, special
counsel to the Company, with respect to the matters set forth in (iii), (iv)
(but not with respect to any documents incorporated by reference) and (viii)
(solely with respect to Federal law and the laws of the State of New York) of
subsection (a)(2) of this Section and to the effect that:
(i) Assuming due authorization, execution
and delivery by the Company, the Indenture 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 that the series of Notes has
been duly authorized, when the terms of a particular Note and its
issuance and sale have been duly established in conformity with
the Indenture, and assuming that such Note has been duly executed
and authenticated in accordance with the provisions of the
Indenture and delivered and paid for by the purchasers thereof in
accordance with the terms of this Agreement, such Note will be
entitled to the benefits of the Indenture and will be a valid and
binding obligation of the Company, enforceable in accordance with
its terms, except as (A) 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 statements in the Prospectus under
the captions "Description of Notes," "Description of Debt
Securities" and "United States Taxation," in each case insofar as
they constitute summaries of the legal matters or documents
referred to therein, fairly present the information called for
with respect to such legal matters and documents and fairly
summarize the matters referred to therein.
(iv) The Indenture has been duly qualified
under the 1939 Act.
In giving such opinion, such counsel 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, so long
as each such opinion (or in lieu thereof, the letter authorizing such reliance
on an earlier such opinion) shall be dated as of the same date and in form and
substance satisfactory to the Agents, and shall expressly permit the Agents to
rely thereon as if such opinion were addressed to the Agents.
(4) The opinion of Skadden, Arps, Slate, Meagher &
Flom, counsel to the Agents, with respect to the matters set forth in (iii)
and (iv) (but not with respect to any documents incorporated by reference) of
subsection (a)(2) of this Section and in (i), (ii) and (iii) (but not with
respect to the statements in the Prospectus under the caption "United States
Taxation") of subsection (a)(3) of this Section.
In giving such opinion, such counsel may rely, as to matters
governed by laws other than the laws of the States of California and New York
and the Federal law of the United States of America, on an opinion or opinions
of local counsel satisfactory to the Agents, so long as each such opinion (or
in lieu thereof, the letter authorizing such reliance on an earlier such
opinion) shall be dated as of the date hereof and in form and substance
satisfactory to the Agents, and shall expressly permit the Agents to rely
thereon as if such opinion were addressed to the Agents.
(5) In giving their opinions required by subsections
(a)(2), (a)(3) and (a)(4) of this Section, respectively, Susan L. Harris,
Esq., Davis Polk & Wardwell and Skadden, Arps, Slate, Meagher & Flom shall
each additionally state that they have generally reviewed and discussed with
officers and other representatives of the Company, counsel for the Company,
and representatives of the independent public accountants for the Company the
contents of the Registration Statement and the Prospectus and, although they
are not passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, and they have not made any independent check or
verification thereof, on the basis of the foregoing, nothing has come to their
attention that would lead them to believe that the Registration Statement
(except for (i) financial statements, supporting schedules and other financial
data included or incorporated by reference therein and (ii) that part of the
Registration Statement that constitutes the Form T-1), at the time it became
effective or, if an amendment to the Registration Statement has been filed by
the Company with the SEC subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective, and at the date
of such opinion, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or that the
Prospectus (except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein), as amended or
supplemented at the date hereof, or (if such opinion is being delivered in
connection with the purchase of Notes by an Agent as principal pursuant to
Section 7(c) hereof) at the date of any agreement by an Agent to purchase
Notes as principal and at the Settlement Date with respect thereto, as the
case may be, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(b) Officer's Certificate. At the date hereof, the
Agents shall have received a certificate signed by an executive officer of the
Company, substantially in the form of Appendix I hereto and dated as of the
date hereof, to the effect that (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus or in
the case of an officer's certificate delivered on the Settlement Date
following the agreement of an Agent to purchase Notes as principal, since the
date of such agreement, there has not been any material adverse change, or any
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, taken as a whole, (ii) the representations and
warranties of the Company contained in Section 2 hereof are true and correct
with the same force and effect as though expressly made at and as of the date
of such certificate and (iii) the Company has performed or complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate.
(c) Comfort Letter. On the date hereof, the Agents
shall have received a letter from Price Waterhouse, dated as of the date
hereof and in form and substance satisfactory to the Agents, to the effect
that:
(i) They are independent public accountants
with respect to the Company and its subsidiaries within the
meaning of the 1933 Act and the applicable published rules and
regulations thereunder.
(ii) It is their opinion that the financial
statements audited by them and incorporated by reference in the
Registration Statement comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act, the
1934 Act and the published rules and regulations thereunder with
respect to registration statements on Form S-3.
(iii) Based upon limited procedures set forth
in detail in such letter, nothing has come to their attention
which causes them to believe that: (A) the unaudited consolidated
condensed financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement
and Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and
the 1934 Act as it applies to Form 10-Q and the published rules
and regulations thereunder or any material modifications should be
made to such unaudited consolidated condensed financial statements
for them to be in conformity with generally accepted accounting
principles or (B) at August 31, 1995, there has been any change in
the capital stock of the Company or any increase in the senior
indebtedness or subordinated notes and debentures of the Company
and its subsidiaries or any decrease in the total assets as
compared with the amounts shown on the most recent balance sheet
of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and Prospectus or, during
the period from the date of such balance sheet to August 31, 1995,
there were any decreases, as compared with the corresponding
period in the preceding year, in unaudited consolidated investment
income, net investment income, net income (loss) and net income
(loss) per share of the Company and its subsidiaries, except in
all instances for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred
or may occur or (C) at a specified date not more than five days
prior to the date of such letter, there has been any change in the
capital stock of the Company or any increase in the borrowings of
the Company and its subsidiaries or any decrease in the total
assets as compared with the amounts shown on the most recent
balance sheet of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and
Prospectus.
(iv) In addition to the examination referred
to in their opinions, and the limited procedures referred to in
clause (iii) above, they have carried out certain other specified
procedures, not constituting an audit, with respect to financial
information and certain amounts and percentages which are
derivable from financial information and which are included or
incorporated by reference in the Registration Statement and
Prospectus and which are specified by the Agents, and have found
such amounts, percentages and financial information to be in
agreement with the relevant accounting and financial records of
the Company and its subsidiaries identified in such letter.
(d) Other Documents. On the date hereof and on each
Settlement Date, counsel to the Agents shall have been furnished with such
documents and opinions as such counsel may reasonably require for the purpose
of enabling such counsel to pass upon the issuance and sale of Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the fulfillment
of any of the conditions herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Notes as herein
contemplated shall be satisfactory in form and substance to the Agents and to
counsel to the Agents.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement (or, at
the option of an Agent, any applicable agreement by an Agent to purchase Notes
as principal) may be terminated by the Agents by notice to the Company at any
time and any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(h) hereof, the indemnity and contribution
agreement set forth in Sections 8 and 9 hereof, the provisions concerning
payment of expenses under Section 10 hereof, the provisions concerning the
representations, warranties and agreements to survive delivery of Section 11
hereof, the provisions relating to governing law set forth in Section 14 and
the provisions set forth under "Parties" of Section 15 hereof shall remain in
effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through one or more Agents as agents
shall be made by the Company to such Agent or Agents for the account of any
purchaser only against payment therefor in immediately available funds. In
the event that a purchaser shall fail either to accept delivery of or to make
payment for a Note on the date fixed for settlement, such Agent or Agents
shall promptly notify the Company and deliver the Note to the Company, and, if
such Agent or Agents have theretofore paid the Company for such Note, the
Company will promptly return such funds to the respective Agent or Agents. If
such failure occurred for any reason other than default by one or more Agents
in the performance of their obligations hereunder, the Company will reimburse
the respective Agent or Agents on an equitable basis for its loss of the use
of the funds for the period such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties.
Each acceptance by it of an offer for the purchase of Notes (whether to one or
more Agents as principal or through one or more Agents as agents), and each
delivery of Notes to one or more Agents as principal or through one or more
Agents as agents, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement are
true and correct at the time of such acceptance or sale, as the case may be,
and an undertaking that such representations and warranties will be true and
correct at the time of delivery to the purchaser or its agents, or to an
Agent, of the Note or Notes relating to such acceptance or sale, as the case
may be, as though made at and as of each such time (provided that it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) Subsequent Delivery of Certificates. Each time
that (i) the Registration Statement or the Prospectus shall be amended or
supplemented (other than by (A) a pricing supplement or other amendment or
supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities of Notes or similar changes
(collectively, "Pricing Terms"), (B) an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes or (C)
except as provided below, the filing of any document incorporated by reference
therein), (ii) there is filed with the SEC any periodic report on Form 10-K or
10-Q, or a current report on Form 8-K containing information called for by any
of Items 1 through 4 thereof, (iii) (if required in connection with the
purchase of Notes by an Agent as principal) the Company sells Notes to an
Agent as principal or (iv) the Company issues and sells Notes in a form not
previously certified to the Agents by the Company, the Company shall furnish or
cause to be furnished to the Agents forthwith a certificate dated the date of
filing with the SEC of such supplement or document, the date of effectiveness
of such amendment, or the date of such sale, as the case may be, in form
satisfactory to the Agents to the effect that the statements contained in the
certificate referred to in Section 5(b) hereof which were last furnished to
the Agents are true and correct at the time of such amendment, supplement,
filing or sale, as the case may be, as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time
that (i) the Registration Statement or the Prospectus shall be amended or
supplemented (other than by (A) a pricing supplement or other amendment or
supplement providing solely for Pricing Terms or solely for the inclusion of
additional financial information, or any pricing supplement in connection with
a purchase of Notes by an Agent as principal, (B) an amendment or supplement
which relates exclusively to an offering of debt securities other than the
Notes or (C) except as provided below, the filing of any document incorporated
by reference therein), (ii) there is filed with the SEC any periodic report on
Form 10-K or 10-Q, or a current report on Form 8-K containing information
called for by any of Items 1 through 4 thereof, (iii) the Company sells Notes
to an Agent as principal (provided that in the case of a purchase of Notes
with respect to which the applicable pricing supplement provides solely for
Pricing Terms or solely for the inclusion of additional financial information,
only if required by such Agent) or (iv) the Company issues and sells Notes in
a form not previously certified to the Agents by the Company, the Company shall
furnish or cause to be furnished forthwith to the Agents and to counsel to the
Agents written opinions of Susan L. Harris, Esq. and Davis Polk & Wardwell, or
in either case other counsel satisfactory to the Agents, dated the date of
filing with the SEC of such supplement or document, the date of effectiveness
of such amendment, or the date of such sale, as the case may be (except that
no opinion other than that of Susan L. Harris, Esq. or other counsel
satisfactory to the Agents shall be required solely as a result of the filing
by the Company with the SEC of any periodic report on Form 10-Q or any of the
above-referenced current reports on Form 8-K), in form and substance
satisfactory to the Agents, of the same tenor in the case of Susan L. Harris,
Esq. or such other counsel as the opinion referred to in Section 5(a)(2)
hereof and in the case of Davis Polk & Wardwell or such other counsel as the
opinion referred to in Section 5(a)(3) hereof (including the opinion of each
required by Section 5(a)(5) hereof) but modified, as necessary, to relate to
the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such opinion; or, in lieu of such opinion, counsel
last furnishing such opinion to the Agents shall furnish the Agents with a
letter substantially in the form of Appendix II hereto to the effect that the
Agents may rely on such last opinion to the same extent as though it was dated
the date of such letter authorizing reliance (except that statements in such
last opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each
time that (i) the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information (other than by (A)
any pricing supplement in connection with a purchase of Notes by an Agent as
principal, (B) an amendment or supplement which relates exclusively to an
offering of debt securities other than the Notes or (C) except as provided
below, the filing of any document incorporated by reference therein), (ii)
there is filed with the SEC any periodic report on Form 10-K or 10-Q, or any
current report on Form 8-K containing information called for by Item 7
thereof, or (iii) the Company sells Notes to an Agent as principal (provided
that in the case of a purchase of Notes with respect to which the applicable
pricing supplement provides solely for Pricing Terms, only if required by such
Agent), the Company shall cause Price Waterhouse forthwith to furnish the
Agents a letter, dated the date of effectiveness of such amendment, the date
of filing such supplement or document with the SEC, or the date of such sale,
as the case may be, in form satisfactory to the Agents, of the same tenor as
the portions of the letter referred to in clauses (i) and (ii) of Section 5(c)
hereof but modified to relate to the Registration Statement and Prospectus, as
amended and supplemented to the date of such letter, and of the same general
tenor as the portions of the letter referred to in clauses (iii) and (iv) of
said Section 5(c) with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the accounting
records of the Company; provided, however, that if the Registration Statement
or the Prospectus is amended or supplemented solely to include financial
information as of and for a fiscal quarter, Price Waterhouse may limit the
scope of such letter to the unaudited financial statements included in such
amendment or supplement unless any information included therein of an
accounting, financial or statistical nature is of such a nature that, in the
reasonable judgment of the Agents, such letter should cover such other
information.
SECTION 8. Indemnification.
(a) The Company agrees to indemnify and hold
harmless each Agent and each person, if any, who controls such Agent within
the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934
Act, from and against any and all losses, claims, damages and liabilities,
joint or several (including, without limitation, any legal fees or other
expenses reasonably incurred by any Agent 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 or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any prior prospectus relating to the
Notes, 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 such Agent in writing expressly
for use therein; provided, however, that the foregoing indemnity agreement
shall not inure to the benefit of any Agent, or any person controlling such
Agent, if the asserted losses, claims, damages or liabilities arise from any
sale of Notes to any person resulting from a solicitation made or an offer to
purchase received by such Agent, or from any sale of Notes by such Agent to
such person, and 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 Agent to such person, if required by
law so to have been delivered, at or prior to such sale, 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.
(b) Each Agent 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 1933 Act or Section 20 of the
1934 Act to the same extent as the foregoing indemnity from the Company to
such Agent, 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 such Agent in writing
expressly for use in the Registration Statement, the Prospectus, any prior
prospectus relating to the Notes or any amendments or supplements thereto.
This indemnity will be in addition to any liability which the Agents may
otherwise have.
(c) 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 within a reasonable time 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 Agent that is a
party to the proceeding (or, if more than one Agent is a party to the
proceeding, by mutual agreement of the Agents), 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.
SECTION 9. Contribution.
(a) If the indemnification provided for in the first
or second paragraph of Section 8 hereof 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 Agent or Agents participating in the sale of the Notes that gave rise to
such losses, claims, damages or liabilities (the "Relevant Notes") on the other
hand from the sale of the Relevant Notes 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 Agent or Agents participating in the sale of the Relevant Notes 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 such Agent or Agents on the other hand in connection with the
sale of the Relevant Notes shall be deemed to be in the same respective
proportions as the net proceeds from the sale of the Relevant Notes (before
deducting expenses) received by the Company and the total discounts and
commissions received by the Agents from the sale of the Relevant Notes bear to
the aggregate initial offering price of the Relevant Notes. The relative
fault of the Company on the one hand and of such Agent or Agents 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 such Agent or Agents and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Agents' respective obligations to contribute
pursuant to this Section 9 are several in proportion to the respective
principal amounts of Relevant Notes sold to or through each of such Agents and
not joint.
(b) The Company and the Agents agree that it would
not be just or equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Agents 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 9, no
Agent shall be required to contribute any amount in excess of the amount by
which the total price at which the Relevant Notes were sold through or by it
to the public exceeds the amount of any damages that such Agent 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 1933 Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 9 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.
(c) The indemnity and contribution provisions
contained in Section 8 and Section 9 hereof 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 Agent or any person controlling any
Agent 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 Notes.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including:
(a) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any amendments or
supplements thereof;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery
of the Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) The fees and disbursements of the Company's
accountants and counsel, of the Trustee and its counsel, and of any
calculation agents or exchange rate agents;
(e) The reasonable fees and disbursements of
Skadden, Arps, Slate, Meagher & Flom, counsel to the Agents, or such other
counsel to the Agents reasonably acceptable to the Company, incurred in
connection with the establishment of the program relating to the Notes and
incurred from time to time in connection with the transactions contemplated
hereby;
(f) The qualification of the Notes under state
securities laws in accordance with the provisions of Section 4(i) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Agents in connection therewith and in connection with the preparation of
any Blue Sky Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration Statement and
any amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agents of the Prospectus and any
amendments or supplements thereto in connection with solicitations or
confirmations of sales of the Notes;
(h) The preparation, reproduction and delivery to
the Agents of copies of the Indenture and all supplements and amendments
thereto;
(i) Any fees charged by rating agencies for the
rating of the Notes;
(j) The fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers,
Inc.;
(k) Any advertising and other out-of-pocket expenses
of the Agents incurred with the approval of the Company;
(l) The cost of providing any CUSIP or other
identification numbers for the Notes; and
(m) The fees and expenses of any Depositary (as
defined in the Indenture) and any nominees thereof in connection with the
Notes.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the Agents or
any controlling person of the Agents, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) This Agreement (excluding any agreement
hereunder by one or more Agents to purchase Notes as principal) may be
terminated for any reason, at any time by the Company or, as to any Agent, by
the Company or such Agent, upon the giving of 15 days' written notice of such
termination to the other parties hereto.
(b) An Agent may terminate any agreement hereunder
by such Agent to purchase Notes as principal, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto (i) if
there has been, since the date of such agreement or since the respective dates
as of which information is given in the Registration Statement, any material
adverse change or any 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, or (ii)
if there has occurred, since the date of such agreement, any outbreak or
escalation of hostilities or any change in financial markets or other calamity
or crisis that, in the judgment of such Agent, is material and adverse, or
(iii) if, since the date of such agreement, trading in any securities of the
Company has been suspended by a national securities exchange, or trading
generally on either the American Stock Exchange or the New York Stock Exchange
shall have been suspended, or if, since such date, a general moratorium on
commercial banking activities in New York shall have been declared by Federal
or New York State authorities or if a banking moratorium shall have been
declared by the relevant authorities in the country or countries of origin of
any foreign currency or currencies in which the Notes are denominated or
payable, or (iv) if, since the date of such agreement, the rating assigned by
any "nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the 1933 Act, to any debt
securities of the Company shall have been lowered or if, since such date, any
such rating organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
debt securities of the Company, and in the case of any of the events specified
in clause (ii) or (iii), such event, singly or together with any other such
event, makes it, in the judgment of such Agent, impracticable to market the
Notes on the terms and in the manner contemplated by the Prospectus, as
amended or supplemented at the date of the agreement by such Agent to purchase
Notes as principal.
(c) In the event of any termination under this
Section 12, the Company will have no liability to any Agent as to which this
Agreement is so terminated and such Agent will have no liability to the
Company, except that with respect to any termination under Section 12(a), (i)
such Agent shall be entitled to any commission earned in accordance with the
third paragraph of Section 3(b) hereof, (ii) if at the time of termination (a)
such Agent shall own any Notes purchased by it as principal pursuant to this
Agreement with the intention of reselling them or (b) an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or his agents of the Note or Notes relating thereto has not
occurred, the covenants set forth in Section 4 and (in the circumstance
described in clause (b)) Section 7 hereof shall remain in effect until such
Notes are so resold or delivered, as the case may be, (iii) if at the time of
termination such Agent shall own any Notes purchased by it as principal
pursuant to this Agreement with the intention of reselling them, the covenants
set forth in Section 7 hereof shall remain in effect until the earlier of (x)
such time as such Notes are resold or (y) 180 days from the last date on which
any of such Notes were purchased from the Company by such Agent (except that
the Company shall, at the request of such Agent, deliver the certificates,
opinions and letters specified in Section 7 hereof after the date set forth in
clause (y), but not after the date set forth in clause (x), if such Agent,
notwithstanding the provisions of Section 10, pays all expenses incident to
the preparation and delivery of the certificates, opinions and letters that
the Company is required to deliver solely as a consequence of this
parenthetical), and (iv) the covenant set forth in Section 4(h) hereof, the
indemnity and contribution agreements set forth in Sections 8 and 9 hereof,
the provisions of Section 10 hereof, and the provisions of Sections 11, 14 and
15 hereof shall remain in effect.
SECTION 13. Notices.
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Agents shall be
directed as follows:
Merrill Lynch & Co.
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Chase Securities, Inc.
1 Chase Manhattan Plaza, 15th Floor
New York, New York 10081
Attention: Medium-Term Note Desk
Goldman, Sachs & Co.
85 Broad Street
18th Floor
New York, New York 10004
Attention: Registration Department
J.P. Morgan Securities Inc.
60 Wall Street, Third Floor
New York, New York 10260-0060
Attention: Transaction Execution Group
PaineWebber Incorporated
Fixed Income Capital Markets
1285 Avenue of the Americas
New York, New York 10019
Attention: Ted Wachtell
with a copy to
Skadden, Arps, Slate, Meagher & Flom
300 S. Grand Avenue, Suite 3400
Los Angeles, California 90071
Attention: Gregg A. Noel, Esq.
Notices to the Company shall be directed as follows:
SunAmerica Inc.
1 SunAmerica Center
Los Angeles, California 90067-6022
Attention: James R. Belardi
with a copy to
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: David W. Ferguson, Esq.
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding
upon the Agents and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the parties hereto and respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Notes shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. Amendments.
This Agreement may be amended or supplemented if, but only
if, such amendment or supplement is in writing and is signed by the Company
and each Agent; provided that the Company may from time to time, on prior
written notice to the Agents but without the consent of any Agent, amend this
Agreement to add as party hereto one or more additional firms registered under
the 1934 Act, whereupon each such firm shall become an Agent hereunder on the
same terms and conditions as the other Agents that are parties hereto. The
Agents shall sign any amendment or supplement the sole effect of which is the
addition of any such firm pursuant to this Section 16 as an Agent under this
Agreement.
If the foregoing is in accordance with the Agents'
understanding of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument along with all counterparts will
become a binding agreement between the Agents and the Company in accordance
with its terms.
Very truly yours,
SUNAMERICA INC.
By:
Name: James R. Belardi
Title: Senior Vice President &
Treasurer
Accepted:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
Name: ___________________
Title: ___________________
CHASE SECURITIES, INC.
By:
Name: _______________________
Title: _______________________
GOLDMAN, SACHS & CO.
By:
Name: _______________________
Title: _______________________
J.P. MORGAN SECURITIES INC.
By:
Name: _______________________
Title: _______________________
PAINEWEBBER INCORPORATED
By:
Name: _______________________
Title: _______________________
SCHEDULE A
As compensation for the services of the Agents hereunder,
the Company shall pay it, on a discount basis, a commission for the sale of
each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below (or with respect to any Note for which
the maturity is in excess of 30 years, such commission as shall be agreed to
by the Company and an Agent):
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From more than 9 months to less than 1 year.................. .125%
From 1 year to less than 18 months........................... .150
From 18 months to less than 2 years.......................... .200
From 2 years to less than 3 years............................ .250
From 3 years to less than 4 years............................ .350
From 4 years to less than 5 years............................ .450
From 5 years to less than 6 years............................ .500
From 6 years to less than 7 years............................ .550
From 7 years to less than 10 years........................... .600
From 10 years to less than 15 years.......................... .625
From 15 years to less than 20 years.......................... .700
From 20 years to 30 years.................................... .750
Appendix I
OFFICER'S CERTIFICATE
The undersigned, [name], [title], of SunAmerica Inc., a
Maryland corporation (the "Company"), pursuant to Section 5(b) of the
Distribution Agreement, dated October 19, 1995 (the "Distribution Agreement"),
by and among the Company and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Chase Securities, Inc., Goldman, Sachs & Co.,
J.P. Morgan Securities Inc. and PaineWebber Incorporated, relating to the sale
of up to $300,000,000 aggregate initial offering price of the Company's
Medium-Term Notes, Series 2, hereby certifies that:
1. Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (each as defined in the
Distribution Agreement) [or, in the case of a certificate delivered on the
Settlement Date following the agreement of an Agent to purchase Notes as
principal, since the date of such agreement], there has not been any material
adverse change, or any 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, taken as a whole;
2. The representations and warranties of the Company
contained in Section 2 of the Distribution Agreement are true and correct with
the same force and effect as though expressly made at and as of the date
hereof;
3. The Company has performed or complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date hereof; and
4. Piper & Marbury, Davis Polk & Wardwell and Skadden,
Arps, Slate, Meagher & Flom are each entitled to rely upon this Officer's
Certificate in connection with the opinions given by such firms pursuant to
Sections 5(a)(l), 5(a)(3) and 5(a)(4), respectively, of the Distribution
Agreement.
IN WITNESS WHEREOF, the undersigned has hereunto signed his
name this th day of , 19 .
- -----------------------------
[Name]
[Title]
Appendix II
, 19
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Chase Securities, Inc.
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
PaineWebber Incorporated
Re: SunAmerica MTN Program
Dear Sirs:
[We] [I] have delivered an opinion (the "Opinion") to you,
dated ________, 19__, as [special] counsel to SunAmerica Inc. (the "Company,
pursuant to Section [5(a)(2)/5(a)(3)] of the Distribution Agreement, dated
October 19, 1995 (the "Distribution Agreement"), by and among the Company and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Chase
Securities, Inc., Goldman, Sachs & Co., J.P Morgan Securities Inc. and
PaineWebber Incorporated. This letter is delivered pursuant to Section 7(c)
of the Distribution Agreement.
You may rely on the Opinion to the same extent as though it
was dated the date hereof (except that statements in the Opinion shall be
deemed to relate to the Registration Statement and the Prospectus (each as
defined in the Distribution Agreement) as amended and supplemented to the date
hereof).
Very truly yours,
EXHIBIT A
The following terms, if applicable, shall be agreed to by
the Agents and the Company in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agents:
If CMT Rate Notes
Designated CMT Telerate Page:
Designated CMT Maturity Index:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than
U.S. dollar):
Currency of Payment:
Additional Terms:
Also, in connection with the purchase of Notes by an Agent as principal,
agreement as to whether the following will be required:
Stand-off Agreement pursuant to Section 4(1) of the
Distribution Agreement.
Officer's Certificate pursuant to Section 7(b) of
the Distribution Agreement.
Legal Opinion pursuant to Section 7(c) of the
Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the
Distribution Agreement.
EXHIBIT B
SUNAMERICA INC.
ADMINISTRATIVE PROCEDURES
for Fixed and Floating Rate Medium-Term Notes, Series 2
(Dated as of October 19, 1995)
Medium Term Notes, Series 2 (the "Notes") are to be offered on a
continuing basis by SunAmerica Inc., a Maryland corporation (the "Company"),
to or through Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Chase Securities, Inc., Goldman, Sachs & Co., J.P. Morgan
Securities Inc. and PaineWebber Incorporated (each an "Agent" and,
collectively, the "Agents"), pursuant to a Distribution Agreement dated
October 19, 1995 (the "Distribution Agreement") between the Company and the
Agents. The Distribution Agreement provides both for the sale of Notes by the
Company to one or more of the Agents as principal for resale to investors and
other purchasers and for the sale of Notes by the Company directly to
investors (as may from time to time be agreed to by the Company and the
related Agent or Agents) in which case one or more Agents will act as agents
of the Company in soliciting Note purchases.
Unless otherwise agreed by the related Agent or Agents and the
Company, Notes will be purchased by the related Agent or Agents as principal.
Such purchases will be made in accordance with terms agreed upon by the
related Agent or Agents and the Company (which terms shall be agreed upon in
writing or orally, with written confirmation prepared by the related Agent or
Agents and mailed to the Company). If agreed upon by any Agent or Agents and
the Company, such Agent or Agents, acting solely as agent or agents for the
Company and not as principal, will use reasonable efforts to solicit offers to
purchase the Notes. Only those provisions in these Administrative procedures
that are applicable to the particular role that an Agent will perform shall
apply.
The Notes will be issued as a series of debt securities pursuant
to a Senior Indenture, dated as of April 15, 1993 (the "Indenture"), as
supplemented by the Supplemental Indenture dated as of June 28, 1993, between
the Company and The First National Bank of Chicago, as trustee (the
"Trustee"), and are in the respective forms attached as Exhibits E-1, E-2, E-3
and E-4 to the Secretary's Certificate of the Company as referred to in the
Officer's Certificate delivered to the Trustee on the date hereof pursuant to
Section 2.1 of the Indenture. In accordance with the provisions of the
Indenture, First Chicago Trust Company of New York has been duly appointed by
the Trustee as Authenticating Agent. The Company has duly appointed First
Chicago Trust Company of New York and The First National Bank of Chicago as
Transfer Agents and Paying Agents. "Issuing Agent," as used herein, means The
First National Bank of Chicago.
A Registration Statement (the "Registration Statement," which term
shall include any additional registration statements or amendments thereto
filed in connection with the Notes as provided in the introductory paragraph
of the Distribution Agreement) with respect to the Notes has been filed with
the Securities and Exchange Commission (the "Commission"). The most recent
base Prospectus included in the Registration Statement, as supplemented with
respect to the Notes, is herein referred to as the "Prospectus." The most
recent supplement to the prospectus setting forth the purchase price, interest
rate, maturity date and other terms of the Notes (as applicable) is herein
referred to as the "Pricing Supplement."
The Notes will either be issued (a) in book-entry form and
represented by one or more fully registered Notes (each, a "Book-Entry Note")
delivered to the Issuing Agent, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC, or (b) in
definitive form (each, a "Definitive Note") delivered to the investor or other
purchaser thereof or a person designated by such investor or other purchaser.
Owners of beneficial interests in Notes issued in book-entry form will be
entitled to physical delivery of Notes in definitive form equal in principal
amount to their respective beneficial interests only upon certain limited
circumstances described in the Prospectus and the Indenture.
General procedures relating to the issuance of all Notes are set
forth in Part I hereof. Additionally, Notes issued in book-entry form will be
issued in accordance with the procedures set forth in Part II hereof and Notes
issued in definitive form will be issued in accordance with the procedures set
forth in Part III hereof. The following procedures shall also be deemed to
include all relevant procedures described in the DTC Letter of Representations
dated October 19, 1995, to the extent that such procedures are not set forth
below. Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Indenture or the Notes, as the case
may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of
its authentication by the Issuing Agent.
Each Note shall also bear an original
issue date (the "Original Issue Date").
The Original Issue Date shall remain the
same for all Notes subsequently issued
upon transfer, exchange or substitution of
an original Note regardless of their dates
of authentication.
Maturities: Each Note will mature on a date selected
by the investor or other purchaser and
agreed to by the Company which, unless
otherwise provided in the applicable
Pricing Supplement, is not less than nine
months, nor more than 30 years, from its
Original Issue Date.
Registration: Notes will be issued only in fully
registered
form.
Denominations: Unless otherwise provided in the
applicable Pricing Supplement, Notes will
be issued in denominations of $1,000 or
any integral multiple of $1,000 in excess
thereof.
Base Rates applicable
to Floating Rate
Notes: Unless otherwise provided in the
applicable Pricing Supplement, Notes
bearing interest at rates determined by
reference to selected indices ("Floating
Rate Notes") (except for certain Original
Issue Discount Notes) will bear interest
at a rate or rates determined by reference
to one or more of the CD Rate ("CD Rate
Notes"), the Commercial Paper Rate
("Commercial Paper Rate Notes"), the
Eleventh District Cost of Funds Rate (the
"Eleventh District Notes"), the Federal
Funds Rate ("Federal Funds Rate Notes"),
LIBOR ("LIBOR Notes"), the Prime Rate
("Prime Rate Notes"), the CMT Rate ("CMT
Rate Notes"), the Treasury Rate ("Treasury
Rate Notes"), as adjusted by the Spread
and/or Spread Multiplier, if any,
applicable to such Floating Rate Notes.
Redemption/Repayment: The Notes will be subject to repayment at
the option of the Holders thereof in
accordance with the terms of the Notes on
their respective Optional Repayment Dates,
if any. Optional Repayment Dates, if any,
will be fixed at the time of sale and set
forth in the applicable Pricing Supplement
and in the applicable Note. If no Optional
Repayment Dates are indicated with respect
to a Note, such Note will not be repayable
at the option of the Holder prior to its
Stated Maturity Date.
The Notes will be subject to redemption by
the Company on and after their respective
Initial Redemption Date, if any. The
Initial Redemption Date, if any, will be
fixed at the time of sale and set forth in
the applicable Pricing Supplement and in
the applicable Note. If no Initial
Redemption Date is indicated with respect
to a Note, such Note will not be
redeemable prior to its Stated Maturity
Date.
Calculation of
Interest: With respect to any Fixed Rate Note, if
the Day Count Convention specified on the
applicable Note is "30/360," interest will
be calculated and paid on the basis of a
360-day year of twelve 30-day months; if
the Day Count Convention specified on the
applicable Note is "Actual/360," interest
will be calculated and paid on the basis of
the actual number of days in the interest
period divided by 360; and if the Day
Count Convention specified on the
applicable Note is "Actual/Actual,"
interest will be calculated and paid on
the basis of the actual number of days in
the interest period divided by the actual
number of days in the year.
With respect to any Floating Rate Note,
unless otherwise specified on such Note,
if the Day Count Convention specified on
the applicable Note is "Actual/360,"
interest will be calculated and paid on
the basis of the actual number of days in
the interest period divided by 360; and
if the Day Count Convention specified on
the applicable Note is "Actual/Actual,"
interest will be calculated and paid on
the basis of the actual number of days in
the interest period divided by the actual
number of days in the year.
With respect to each Floating Rate Note,
accrued interest will be calculated by
multiplying its face amount by an accrued
interest factor. Such accrued interest
factor is computed by adding the interest
factor calculated for each day in the
period for which accrued interest is being
calculated. Unless otherwise specified in
the applicable Pricing Supplement, the
interest factor for each such day is
computed by dividing the interest rate
applicable to such day by 360 in the case
of CD Rate Notes, Commercial Paper Rate
Notes, Eleventh District Notes, Federal
Funds Rate Notes, LIBOR Notes or Prime Rate
Notes, or by the actual number of days in
the year in the case of CMT Rate Notes or
Treasury Rate Notes. Unless otherwise
specified in an applicable Pricing
Supplement, the interest factor for Notes
for which the interest rate is calculated
with reference to two or more Interest
Rate Bases will be calculated in each
period in the same manner as if only one
of the applicable Interest Rate Bases
applied as specified in the applicable
Pricing Supplement and the Notes.
Interest: General. Each Note will bear
interest in accordance with its terms.
Unless otherwise specified in an
applicable Pricing Supplement, interest on
each Note will accrue from the Original
Issue Date of such Note for the first
interest period and from the most recent
Interest Payment Date to which interest
has been paid for all subsequent interest
periods. Each payment of interest will
include interest accrued through the day
preceding, as the case may be, the
Interest Payment Date, the Stated Maturity
Date, any redemption date or repayment
date (each Stated Maturity Date,
redemption date or repayment date is
referred to herein as "Maturity").
Interest payable at Maturity will be
payable to the Person to whom the
principal of such Note is payable. If an
Interest Payment Date with respect to any
Fixed Rate Note falls on a day that is not
a Business Day, the payment of interest
required to be made on such Interest
Payment Date need not be made on such day,
but may be made on the next succeeding
Business Day with the same force and
effect as if made on such Interest Payment
Date and no interest shall accrue on such
payment for the period from and after such
Interest Payment Date. If an Interest
Payment Date (other than at Maturity) with
respect to any Floating Rate Note would
otherwise fall on a day that is not a
Business Day, such Interest Payment Date
will be the following day that is a
Business Day, except that in the case of a
LIBOR Note, if such day falls in the next
calendar month, such Interest Payment Date
will be the preceding day that is a
Business Day. If the date of Maturity of
a Note is not a Business Day, the payment
of principal and interest due on such day
shall be made on the next succeeding
Business Day and no interest shall accrue
on such payment for the period from and
after such Maturity. For additional
special provisions relating to Floating
Rate Notes, see the Prospectus and the
applicable Pricing Supplement.
Record Dates. Unless otherwise indicated
in an applicable Pricing Supplement, the
record date with respect to any Interest
Payment Date for a Note shall be the date
15 calendar days (whether or not a
Business Day) preceding such Interest
Payment Date.
Interest Payment Dates. Interest payments
will be made on each Interest Payment Date
commencing with the first Interest Payment
Date following the Original Issue Date;
provided, however, the first payment of
interest on any Note originally issued
between a record date and the related
Interest Payment Date will be made on the
Interest Payment Date following the next
record date to the registered Holder on
such record date.
Fixed Rate Notes. Unless otherwise
provided in an applicable Fixed Rate Note,
interest payments on Fixed Rate Notes will
be made semiannually on June l and
December 1 of each year and at Maturity.
Floating Rate Notes. Interest payments on
Floating Rate Notes will be made as
specified in the related Floating Rate
Note and Pricing Supplement.
Acceptance and
Rejection of Offers: If agreed upon by any Agent and the
Company, such Agent acting solely as agent
for the Company and not as principal will
solicit purchases of the Notes. Each
Agent will communicate to the Company,
orally or in writing, each reasonable
offer to purchase Notes solicited by such
Agent on an agency basis, other than those
offers rejected by such Agent. Each Agent
has the right, in its discretion
reasonably exercised, to reject any
proposed purchase of Notes, as a whole or
in part, and any such rejection is not
deemed a breach of the Agent's agreement
contained in the Distribution Agreement.
The Company has the sole right to accept
or reject any proposed purchase of the
Notes, in whole or in part, and any such
rejection is not deemed a breach of the
Company's agreement contained in the
Distribution Agreement. Each Agent has
agreed to make reasonable efforts to
assist the Company in obtaining
performance by each purchaser whose offer
to purchase Notes has been solicited by
such Agent and accepted by the Company.
Preparation of
Pricing Supplement: If any offer to purchase a Note is
accepted by the Company, the Company will
promptly prepare a Pricing Supplement
reflecting the terms of such Note and file
such Pricing Supplement with the
Commission in accordance with Rule 424
under the Securities Act of 1933.
Information to be included in the Pricing
Supplement shall include:
1. the name of the Company;
2. the title of the securities,
including series designation, if any;
3. the date of the Pricing Supplement
and the dates of the Prospectus and
Prospectus Supplement to which the
Pricing Supplement relates;
4. the name of the Offering Agent (as
hereinafter defined);
5. whether such Notes are being sold to
the Offering Agent as principal or
to an investor or other purchaser
through the Offering Agent acting as
agent for the Company;
6. with respect to Notes sold to the
Offering Agent as principal, whether
such Notes will be resold by the
Offering Agent to investors and other
purchasers (i) at a fixed public
offering price of a specified
percentage of their principal
amount, (ii) at varying prices
related to prevailing market prices
at the time of resale to be
determined by the Offering Agent or
(iii) at 100% of their principal
amount;
7. with respect to Notes sold to an
investor or other purchaser through
the Offering Agent acting as agent
for the Company, whether such Notes
will be sold at (i) 100% of their
principal amount or (ii) at a
specified percentage of their
principal amount;
8. the Offering Agent's commission or
underwriting discount;
9. Net proceeds to the Company;
10. the Principal Amount, Original Issue
Date, Stated Maturity Date, Initial
Redemption Date, if any, Initial
Redemption Percentage, if any, Annual
Redemption Percentage Reduction, if
any, and Optional Repayment Date or
Dates, if any, and, in the case of
Fixed Rate Notes, the Interest Rate,
the Interest Payment Date or Dates
(if other than June l and December 1
of each year) and the record date or
dates (if other than May 15 and
November 15 of each year), and, in
the case of Floating Rate Notes, the
Interest Rate Basis or Bases, the
Index Maturity (if applicable), the
Initial Interest Rate, the Maximum
Interest Rate, if any, the Minimum
Interest Rate, if any, the Interest
Payment Date or Dates, the record
date or dates, the Interest Reset
Date or Dates, the Interest Reset
Period, the Interest Determination
Date, the Spread and/or Spread
Multiplier, if any, and the
Calculation Agent, and if one or
more of the Specified Interest Rate
Bases is LIBOR, the Index Currency
and the Designated LIBOR Page;
11. the information with respect to the
terms of the Notes set forth below
(whether or not the applicable Note
is a Book-Entry Note or a Definitive
Note) under "Procedures for Notes
Issued in Book-Entry Form -
Settlement Procedures," items 1, 2,
6, 7 and 8; and
12. any other provisions of the Notes
material to investors or other
purchasers of the Notes not
otherwise specified in the
Prospectus or Pricing Supplement.
One copy of such filed document will be
sent by telecopy or overnight express (for
delivery as soon as practicable following
the trade, but in no event later than 12:00
noon on the second Business Day following
the applicable trade date) to the Agent
which made or presented the offer to
purchase the applicable Note (in such
capacity, the "Offering Agent"), the
Trustee and the Issuing Agent at the
following applicable address: if to
Merrill Lynch, to: Tritech Services, #4
Corporate Place, Corporate Park 287,
Piscataway, New Jersey 08854, Attention:
Nachman Kimerling / Final Prospectus Unit,
(908) 878-6526, telecopier (908) 878-6530;
if to Chase Securities, Inc., to: 1 Chase
Manhattan Plaza, 15th Floor, New York, New
York 10081, Attention: Medium-Term Note
Desk, (212) 552-2969, telecopier: (212)
552-1594; if to Goldman, Sachs & Co., to:
85 Broad Street, 18th Floor, New York, New
York 10004, Attention: Registration
Department, (212) 902-1000, telecopier:
(212) 902-3000; if to J.P. Morgan
Securities Inc., to: 60 Wall Street,
Third Floor, New York, New York
10260-0060, Attention: Transaction
Execution Group, (212) 648-0738,
telecopier: (212) 648-5151; if to
PaineWebber Incorporated, to: Fixed
Income Capital Markets, 11th Floor, 1285
Avenue of the Americas, New York, New York
10019, (212) 713-2960, telecopier: (212)
247-0371; and if to the Trustee/Issuing
Agent, to: The First National Bank of
Chicago, One First National Plaza, Suite
0126, Chicago, Illinois 60670, Attention:
Corporate Trust Services Division, (312)
407-1761, telecopier: (312) 407-1708.
For record keeping purposes, one copy of
each Pricing Supplement, as so filed,
shall also be mailed or telecopied to
Skadden, Arps, Slate, Meagher & Flom at 300
S. Grand Avenue, Suite 3400, Los Angeles,
California 90071, Attention: Gregg A.
Noel, Esq.; and to Merrill Lynch & Co.,
World Financial Center, North Tower, 250
Vesey Street, 10th Floor, New York, New
York, 10281-1310, Attention: MTN Product
Management, telecopier: (212) 449-2234.
Outdated Pricing Supplements, and the
supplemented Prospectuses to which they
are attached (other than those retained
for files) will be destroyed.
Settlement: The receipt of immediately available funds
by the Company in payment for a Note and
the authentication and delivery of such
Note shall, with respect to such Note,
constitute "settlement." Offers accepted
by the Company will be settled from three
to five Business Days, or at a time as the
purchaser and the Company shall agree,
pursuant to the timetable for settlement
set forth in Parts II and III hereof under
"Settlement Procedures" with respect to
Book-Entry Notes and Definitive Notes,
respectively (each such date fixed for
settlement is hereinafter referred to as
a "Settlement Date"). If procedures A and
B of the applicable Settlement Procedures
with respect to a particular offer are not
completed on or before the time set forth
under the applicable "Settlement
Procedures Timetable," such offer shall
not be settled until the Business Day
following the completion of settlement
procedures A and B or such later date as
the purchaser and the Company shall agree.
The foregoing settlement procedures may be
modified, with respect to any purchase of
Notes by an Agent as principal, if so
agreed by the Company and such Agent.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached
to change the interest rate or any other
variable term on any Notes being sold by
the Company, the Company will promptly
advise the Agents and the Issuing Agent by
facsimile transmission and the Agents will
forthwith suspend solicitation of offers
to purchase such Notes. The Agents will
telephone the Company with recommendations
as to the changed interest rates or other
variable terms. At such time as the
Company advises the Agents and the Issuing
Agent by facsimile transmission of the new
interest rates or other variable terms,
the Agents may resume solicitation of
offers to purchase such Notes. Until such
time only "indications of interest" may be
recorded. Immediately after acceptance
by the Company of an offer to purchase
Notes at a new interest rate or new
variable term, the Company, the Offering
Agent and the Issuing Agent shall follow
the procedures set forth under the
applicable "Settlement Procedures."
Suspension of
Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to
suspend solicitation of offers to purchase
Notes at any time. Upon receipt of such
instructions, the Agents will forthwith
suspend solicitation of offers to purchase
from the Company until such time as the
Company has advised them that solicitation
of offers to purchase may be resumed. If
the Company decides to amend or supplement
the Registration Statement or the
Prospectus (other than an amendment or
supplement providing solely for a change
in interest rates or made by the filing of
documents incorporated by reference) it
will furnish the Agents and their counsel
with copies of the proposed amendment or
supplement for their review and comment.
One copy of the document filed with the
Commission, along with a copy of the cover
letter sent to the Commission, will be
delivered or mailed to the Agents, their
counsel, the Trustee and the Issuing Agent
at the following respective addresses:
MTN Product Management, Merrill Lynch &
Co., Merrill Lynch World Headquarters,
North Tower, World Financial Center, 10th
Floor, New York, New York 10231-1310,
(212) 449-7476, telecopier: (212)
449-2234; Chase Securities, Inc., to: 1
Chase Manhattan Plaza, 15th Floor, New
York, New York 10081, Attention:
Medium-Term Note Desk, (212) 552-2969,
telecopier: (212) 552-1594; Goldman,
Sachs & Co., to: 85 Broad Street, 18th
Floor, New York, New York 10004,
Attention: Registration Department, (212)
902-1000, telecopier: (212) 902-3000; J.P.
Morgan Securities Inc., to: 60 Wall
Street, Third Floor, New York, New York
10260-0060, Attention: Transaction
Execution Group, (212) 648-0738,
telecopier: (212) 648-5151; if to
PaineWebber Incorporated, to: Fixed
Income Capital Markets, 11th Floor, 1285
Avenue of the Americas, New York, New York
10019, (212) 713-2960, telecopier: (212)
247-0371; and the Trustee/Issuing Agent
at: One First National Plaza, Suite 0126,
Chicago, Illinois 60670, Attention:
Corporate Trust Services Division, (312)
407-1761, telecopier: (312) 407-1708.
For record keeping purposes, one copy of
each such document, as so filed, shall
also be mailed or telecopied to Skadden,
Arps, Slate, Meagher & Flom at 300 S.
Grand Avenue, Suite 3400, Los Angeles,
California 90071, Attention: Gregg A.
Noel, Esq.
In the event that at the time the
solicitation of offers to purchase from
the Company is suspended (other than to
establish or change interest rates,
maturities, prices or other similar
variable terms with respect to the Notes)
there shall be any offers to purchase
Notes that have been accepted by the
Company which have not been settled, the
Company will promptly advise the Agents
and the Issuing Agent whether such offers
may be settled and whether copies of the
Prospectus as theretofore amended and/or
Supplemented as in effect at the time of
the suspension may be delivered in
connection with the settlement of such
offers. The Company will have the sole
responsibility for such decision and for
any arrangements which may be made in the
event that the Company determines that
such offers may not be settled or that
copies of such Prospectus may not be so
delivered.
Delivery of Prospectus
and applicable
Pricing Supplement: A copy of the most recent Prospectus and
applicable Pricing Supplement must
accompany or precede the earlier of (a)
the written confirmation of a sale sent to
an investor or other purchaser or its agent
and (b) the delivery of Notes to an
investor or other purchaser or its agent.
Authenticity of
Signatures: The Agents will have no obligations or
liability to the Company, the Trustee or
the Issuing Agent in respect of the
authenticity of the signature of any
officer, employee or agent of the Company,
the Trustee or the Issuing Agent on any
Note.
Documents Incorporated
by Reference: The Company shall supply the
Agents with an adequate supply of all
documents incorporate by reference in the
Registration Statement.
Business Day: Unless otherwise provided in the
Notes,
"Business Day" as used herein, means a day
that in The City of New York is not a day
on which banking institutions are
authorized or required by law or
regulation to close and, with respect to
Notes as to which LIBOR is an applicable
Interest Rate Basis, is also a London
Business Day. "London Business Day" means
any day (a) if the Index Currency is other
than the European Currency Unit ("ECU"), on
which dealings in deposits in such Index
Currency are transacted in the London
interbank market or (b) if the Index
Currency is the ECU, that is not
designated as an ECU Non-Settlement Day by
the ECU Banking Association in Paris or
otherwise generally regarded in the ECU
interbank market as a day on which
payments in ECUs will not be made.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in
book-entry form for eligibility in the book-entry system maintained by DTC,
the Issuing Agent will perform the custodial, document control and
administrative functions described below, in accordance with its respective
obligations under a Letter of Representation from the Company and the Issuing
Agent to DTC, dated October 19, 1995, and a Certificate Agreement, dated May
26, 1989, between the Issuing Agent and DTC, as amended (the "Certificate
Agreement"), and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry
form (each, a "Book-Entry Note") having
the same Original Issue Date, interest
rate, Day Count Convention, redemption
and/or repayment terms, if any, and Stated
Maturity Date (collectively, the "Fixed
Rate Terms") will be represented initially
by a single global security in fully
registered form without coupons (a
"Registered Global Security"); and all
Floating Rate Notes issued in book-entry
form having the same Original Issue Date,
formula for the calculation of interest
(which may include terms specifying
whether such Floating Rate Note is a
Regular Floating Rate Note, Floating
Rate/Fixed Rate Note (and which must
specify the Fixed Rate Commencement Date),
Inverse Floating Rate Note (and which must
specify the Fixed Interest Rate)) and
specifying the Interest Rate Basis, which
may be the CD Rate, the Commercial Paper
Rate, the Eleventh District Cost of Funds
Rate, the Federal Funds Rate, LIBOR, the
Prime Rate, the CMT Rate or the Treasury
Rate or any other rate set forth by the
Company, Initial Interest Rate, Index
Maturity, Spread and/or Spread Multiplier,
if any, Minimum Interest Rate, if any,
Maximum Interest Rate, if any, redemption
and/or repayment terms, if any, and Stated
Maturity Date (collectively, "Floating Rate
Terms") will be represented initially by a
single Book-Entry Note; provided, however,
that in each case no single Book-Entry
Note will exceed $200,000,000 principal
amount. See "Denominations" below.
For other variable terms with respect to
the Fixed Rate Notes and Floating Rate
Notes, see the Prospectus and the
applicable Pricing Supplement.
Except as provided in the Indenture, no
owner of a beneficial interest in a
Book-Entry Note shall be entitled to
receive any Note issued in definitive form
with respect to such beneficial interest.
Identification: The Company has arranged with
the CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of one series
of CUSIP numbers, which series consists of
approximately 900 CUSIP numbers which have
been reserved for and relating to
Book-Entry Notes and the Company has
delivered to each of the Trustee, the
Issuing Agent and DTC's Underwriting
Department such list of such CUSIP numbers.
The Company will assign CUSIP numbers to
Book-Entry Notes as described below under
Settlement Procedure B. DTC will notify
the CUSIP Service Bureau periodically of
the CUSIP numbers that the Company has
assigned to Book-Entry Notes. The Trustee
or the Issuing Agent, as the case may be,
will notify the Company at any time when
fewer than 100 of the reserved CUSIP
numbers remain unassigned to Book-Entry
Notes, and, if it deems necessary, the
Company will reserve and obtain additional
CUSIP numbers for assignment to Book-Entry
Notes. Upon obtaining such additional
CUSIP numbers, the Company will deliver a
list of such additional numbers to the
Trustee, the Issuing Agent and DTC's
Underwriting Department. Book-Entry Notes
having an aggregate principal amount in
excess of $200,000,000 and otherwise
required to be represented by the same
Registered Global Security will instead be
represented by an additional Registered
Global Security which shall be assigned the
same CUSIP number.
Registration: Unless otherwise specified by
DTC, each Book-Entry Note will be
registered in the name of Cede & Co., as
nominee for DTC, on the register
maintained by the Issuing Agent under the
Indenture. The beneficial owner of a
beneficial interest in a Book-Entry Note
(or one or more indirect participants in
DTC designated by such owner) will
designate one or more participants in DTC
(with respect to such Note issued in
book-entry form, the "Participants") to
act as agent for such beneficial owner in
connection with the book-entry system
maintained by DTC, and DTC will record in
book-entry form, in accordance with
instructions provided by such
Participants, a credit balance with
respect to such Note issued in book-entry
form in the account of such Participants.
The ownership interest of such beneficial
owner in such Note issued in book-entry
form will be recorded through the records
of such Participants or through the
separate records of such Participants and
one or more indirect participants in DTC.
Transfers: Transfers of beneficial ownership
interests in a Book-Entry Note will be
accomplished by book entries made by DTC
and, in turn, by Participants (and in
certain cases, one or more indirect
participants in DTC) acting on behalf of
beneficial transferors and transferee of
such Book-Entry Note.
Exchanges: The Issuing Agent may deliver to DTC and
the CUSIP Service Bureau at any time a
written notice specifying (a) the CUSIP
numbers of two or more Book-Entry Notes
outstanding on such date that represent
Book-Entry Notes having the same Fixed
Rate Terms or Floating Rate Terms, as the
case may be (other than Original Issue
Dates), and for which interest has been
paid to the same date; a date, occurring at
least 30 days after such written notice is
delivered and at least 30 days before the
next Interest Payment Date for the related
Notes issued in book-entry form, on which
such Book-Entry Notes shall be exchanged
for a single replacement Book-Entry Note;
and (c) a new CUSIP number, obtained from
the Company, to be assigned to such
replacement Book-Entry Note. Upon receipt
of such a notice, DTC will send to its
Participants (including the Issuing Agent)
a written reorganization notice to the
effect that such exchange will occur on
such date. Prior to the specified
exchange date, the Issuing Agent will
deliver to the CUSIP Service Bureau
written notice setting forth such exchange
date and the new CUSIP number and stating
that, as of such exchange date, the CUSIP
numbers of the Book-Entry Notes to be
exchanged will no longer be valid. On the
specified exchange date, the Issuing Agent
will exchange such Book-Entry Notes for a
single Book-Entry Note bearing the new
CUSIP number and the CUSIP numbers of the
exchanged Book-Entry Notes will, in
accordance with CUSIP Service Bureau
procedures, be cancelled and not
immediately reassigned. Notwithstanding
the foregoing, if the Book-Entry Notes to
be exchanged exceed $200,000,000 in
aggregate principal amount, one
replacement Book-Entry Note will be
authenticated and issued to represent each
$200,000,000 of principal amount of the
exchanged Book-Entry Notes and an
additional Book-Entry Note or Notes will
be authenticated and issued to represent
any remaining principal amount of such
Book-Entry Notes (see "Denominations"
below).
Denominations: All Notes issued in book-entry form will
be denominated in U.S. dollars. Notes
issued in book-entry form will be issued
in denominations of $1,000 and integral
multiples of $1,000 in excess thereof.
Book-Entry Notes will be denominated in
principal amounts not in excess of
$200,000,000. If one or more Notes issued
in book-entry form having an aggregate
principal amount in excess of $200,000,000
would, but for the preceding sentence, be
represented by a single Book-Entry Note,
then one Book-Entry Note will be issued to
represent each $200,000,000 principal
amount of such Note or Notes issued in
book-entry form and an additional
Book-Entry Note or Notes will be issued to
represent any remaining principal amount
of such Note or Notes issued in book-entry
form. In such a case, each of the
Book-Entry Notes representing such Note
or Notes issued in book-entry form shall
be assigned the same CUSIP number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after
each record date, the Issuing Agent will
deliver to the Company and DTC a written
notice specifying by CUSIP number the
amount of interest to be paid on each
Book-Entry Note on the following Interest
Payment Date (other than an Interest
Payment Date coinciding with Maturity) and
the total of such amounts. DTC will
confirm the amount payable on each
Book-Entry Note on such Interest Payment
Date by reference to the daily bond
reports published by Standard & Poor's
Corporation. On such Interest Payment
Date, the Company will pay to the Issuing
Agent in immediately available funds an
amount sufficient to pay the interest then
due and owing, and upon receipt of such
funds from the Company, the Issuing Agent
in turn will pay to DTC, such total amount
of interest due (other than at Maturity),
at the times and in the manner set forth
below under "Manner of Payment."
Notice of Interest Payments and Record
Dates. Promptly after each Interest
Determination Date for Floating Rate Notes
issued in book-entry form, the Issuing
Agent will notify each of Moody's Investors
Services, Inc. and Standard & Poor's
Corporation of the interest rates
determined on such Interest Determination
Date.
Payments at Maturity. On or about the
first Business Day of each month, the
Issuing Agent will deliver to the Company
and DTC a written list of principal,
interest and premium, if any, to be paid on
each Book-Entry Note maturing either at
the Stated Maturity Date, on a redemption
date in, or for which an Option to Elect
Repayment has been received with respect
to, the following month. The Issuing
Agent, the Company and DTC will confirm
the amounts of such principal, premium, if
any, and interest payments with respect to
a Book-Entry Note on or about the fifth
Business Day preceding the Maturity of
such Book-Entry Note. At such Maturity,
the Company will pay to the Issuing Agent
in immediately available funds an amount
sufficient to make such Maturity payment,
and upon receipt of such funds the Issuing
Agent in turn will pay to DTC, the
principal amount of such Note, together
with interest and premium, if any, due at
such Maturity, at the times and in the
manner set forth below under "Manner of
Payment". Promptly after payment to DTC
of the principal, interest and premium, if
any, due at the Maturity of such
Book-Entry Note, the Issuing Agent will
cancel such Book-Entry Note and deliver it
to the Company with an appropriate debit
advice. On the first Business Day of each
month, the Issuing Agent will deliver to
the Company a written statement indicating
the total principal amount of outstanding
Book-Entry Notes as of the close of
business on the immediately preceding
Business Day.
Manner of Payment. The total amount of
any principal, premium, if any, and
interest due on Book-Entry Notes on any
Interest Payment Date or at Maturity shall
be paid by the Company to the Issuing Agent
in funds available for use by the Issuing
Agent no later than 1:00 P.M., New York
City time, on such date. The Company will
make such payment on such Book-Entry Notes
to an account specified by the Issuing
Agent. Upon receipt of such funds, the
Issuing Agent will pay by separate wire
transfer (using Fedwire message entry
instructions in a form previously
specified by DTC) to an account at the
Federal Reserve Bank of New York previously
specified by DTC, in funds available for
immediate use by DTC, each payment of
interest, principal and premium, if any,
due on a Book-Entry Note on such date.
Thereafter on such date, DTC will pay, in
accordance with its SDFS operating
procedures then in effect, such amounts in
funds available for immediate use to the
respective Participants in whose names such
Notes are recorded in the book-entry
system maintained by DTC. Neither the
Company, the Issuing Agent nor the Trustee
shall have any responsibility or liability
for the payment by DTC of the principal
of, premium, if any, or interest on, the
Book-Entry Notes to such Participants.
Withholding Taxes. The amount of any
taxes required under applicable law to be
withheld from any interest payment on a
Note will be determined and withheld by
the Participant, indirect participant in
DTC or other Person responsible for
forwarding payments and materials directly
to the beneficial owner of such Note.
Settlement
Procedures: Settlement Procedures with regard to each
Note in book-entry form purchased by each
Agent, as principal, or sold by each
Agent, as agent of the Company, will be as
follows:
A. The Offering Agent will advise the
Company by telephone, confirmed by
facsimile, of the following Settlement
information:
l. Principal amount of the
Note.
2. (a) Fixed Rate Notes:
(i) Interest Rate
(ii) Interest
Payment Dates
(iii) Day Count
Convention
(A) 30/360
(B) Actual/
360
(C) Actual/
Actual (and
applicable
periods)
(b) Floating Rate Notes:
(i) specify if:
(A) Regular
Floating Rate
(B) Floating
Rate/Fixed Rate
(Fixed Rate
Commencement Date)
(C) Inverse
Floating Rate
(Fixed Interest
Rate)
(ii) Interest Rate
Basis or Bases
(and if CMT Rate
Notes, the
designated CMT
Telerate page and
the designated CMT
Maturity Index)
(iii) Initial Interest
Rate
(iv) Spread and/or
Spread Multi-
plier, if any
(v) Initial Interest
Reset Date and
Interest Reset
Dates
(vi) Interest Rate
Reset Period
(vii) Interest
Payment Dates
(viii) Interest
Payment Period
(ix) Record Dates
(x) Index Maturity
(xi) Maximum and
Minimum Interest
Rates, if any
(xii) Day Count
Convention
(A) Actual/360
(B) Actual/
Actual (and
applicable
periods)
(xiii) Calculation
Agent
3. Price to public, if any, of the
Note (or whether the Note is
being offered at varying prices
relating to prevailing market
prices at time of resale as
determined by the Offering Agent).
4. Trade Date.
5. Settlement Date (Original
Issue Date).
6. Stated Maturity Date.
7. Redemption provisions, if
any, including Initial
Redemption Date, Initial
Redemption Percentage and
Annual Redemption Percentage
Reduction.
8. Optional Repayment Date(s).
9. Net proceeds to the Company.
10. The Offering Agent's commission
or underwriting discount.
11. Whether such Notes are being sold
to the Offering Agent as
principal or to an investor or
other purchaser through the
Offering Agent acting as agent
for the Company.
12. Whether such Note is being issued
with Original Issue Discount and
the terms thereof.
13. Such other information specified
with respect to the Notes
(whether by Addendum or
otherwise).
B. The Company will assign a CUSIP number
to the Book-Entry Note representing
such Note and then advise the Issuing
Agent by facsimile transmission or other
electronic transmission of the above
settlement information received from
the Offering Agent, such CUSIP number
and the name of the Offering Agent.
C. The Issuing Agent will communicate to
DTC and the Offering Agent through
DTC's Participant Terminal System, a
pending deposit message specifying the
following settlement information:
l. The information set forth in the
Settlement Procedure A.
2. Identification numbers of the
participant accounts maintained
by DTC on behalf of the Issuing
Agent and the Offering Agent.
3. Identification of the Book-Entry
Note as a Fixed Rate Book-Entry
Note or Floating Rate Book-Entry
Note.
4. Initial Interest Payment Date for
such Note, number of days by
which such date succeeds the
related record date for DTC
purposes (or, in the case of
Floating Rate Notes which reset
daily or weekly, the date five
calendar days preceding the
Interest Payment Date) and, if
then calculable, the amount of
interest payable on such Interest
Payment Date (which amount shall
have been confirmed by the Issuing
Agent).
5. CUSIP number of the Book-Entry
Note representing such Note.
6. Whether such Book-Entry Note
represents any other Notes issued
or to be issued in book-entry
form.
DTC will arrange for each pending deposit
message described above to be transmitted
to Standard & Poor's Corporation, which
will use the information in the message to
include certain terms of the related
Book-Entry Note in the appropriate daily
bond report published by Standard & Poor's
Corporation.
D. The Issuing Agent complete and
authenticate the Book-Entry Note
representing such Note.
E. DTC will credit such Note to the
participant account of the Issuing
Agent maintained by DTC.
F. The Issuing Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to
debit such Note to the Issuing Agent's
participant account and credit such
Note to the participant account of the
Offering Agent maintained by DTC and
(ii) to debit the settlement account of
the Offering Agent and credit the
settlement account of the Issuing Agent
maintained by DTC, in an amount equal
to the price of such Note less such
Offering Agent's discount or
underwriting commission, as applicable.
Any entry of such a deliver order shall
be deemed to constitute a
representation and warranty by the
Issuing Agent to DTC that (i) the
Book-Entry Note representing such Note
has been issued and authenticated and
(ii) the Issuing Agent is holding such
Book-Entry Note pursuant to the
Certificate Agreement.
G. In the case of Notes sold through an
Offering Agent, as agent, the Offering
Agent will enter an SDFS deliver order
through DTC's Participant Terminal
System instructing DTC (i) to debit
such Note to the Offering Agent's
participant account and credit such
Note to the participant account of the
Participants maintained by DTC and (ii)
to debit the settlement accounts of
such participants and credit the
settlement account of the Offering Agent
maintained by DTC in an amount equal to
the initial public offering price of
such Note.
H. Transfers of funds in accordance with
SDFS deliver orders described in
Settlement Procedures F and G will be
settled in accordance with SDFS
operating procedures in effect on the
Settlement Date.
I. Upon receipt, the Issuing Agent will
pay the Company, by wire transfer of
immediately available funds to an
account specified by the Company to the
Issuing Agent from time to time, in the
amount transferred to the Issuing Agent
in accordance with Settlement Procedure
F.
J. The Issuing Agent will send a copy of
the Book-Entry Note by first class mail
to the Company together with a
statement setting forth the principal
amount of Notes outstanding as of the
related Settlement Date after giving
effect to such transaction and all
other offers to purchase Notes of which
the Company has advised the Issuing
Agent but which have not yet been
settled.
K. If the Note was sold through the
Offering Agent, as agent, the Offering
Agent will confirm the purchase of such
Note to the investor or other purchaser
either by transmitting to the
Participant with respect to such Note a
confirmation order through DTC's
Participant Terminal System or by
mailing a written confirmation to such
investor or other purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by
the Company, Settlement Procedures "A"
through "K" set forth above shall be
completed as soon as possible but not
later than the respective time (New York
City time) set forth below:
Settlement
Procedure Time
A 11:00 A.M. on
the trade date
B As soon as prac-
ticable follow-
ing the trade,
but in no event
later than 12:00
noon on the
Second Business
Day immediately
preceding the
Settlement Date
C As soon as prac-
ticable follow
ing the trade,
but in no event
later than 2:00
P.M. on the
second Business
Day immediately
preceding the
Settlement Date
D 9:00 A.M. on
Settlement Date
E 10:00 A.M. on
Settlement Date
F-G No later than
2:00 P.M. on
Settlement Date
H 4:45 P.M. on
Settlement Date
I-J 5:00 P.M. on
Settlement Date
If a sale is to be settled more than one
Business Day after the trade date,
Settlement Procedures A, B, and C may, if
necessary, be completed at any time prior
to the specified times on the first
Business Day after such trade date.
Settlement Procedure H is subject to
extension in accordance with any extension
of Fedwire closing deadlines and in the
other events specified in the SDFS
operating procedures in effect on the
Settlement Date.
If settlement of a Note issued in
book-entry form is rescheduled or
canceled, the Issuing Agent will deliver
to DTC, through DTC's Participant Terminal
System, a cancellation message to such
effect by no later than 2:00 P.M., New
York City time, on the Business Day
immediately preceding the scheduled
Settlement Date.
Failure to Settle: If the Issuing Agent fails to
enter an SDFS deliver order with respect
to a Book-Entry Note issued in book-entry
form pursuant to Settlement Procedure F,
the Issuing Agent may deliver to DTC,
through DTC's participant Terminal System,
as soon as practicable a withdrawal
message instructing DTC to debit such Note
to the participant account of the Issuing
Agent maintained at DTC. DTC will process
the withdrawal message, provided that such
participant account contains a principal
amount of the Book-Entry Note representing
such Note that is at least equal to the
principal amount to be debited. If
withdrawal messages are processed with
respect to all the Notes represented by a
Book-Entry Note, the Issuing Agent will
mark such Book-Entry Note "canceled," make
appropriate entries in its records and
send certification of destruction of such
canceled Book-Entry Note to the Company.
The CUSIP number assigned to such
Book-Entry Note shall, in accordance with
CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
If withdrawal messages are processed with
respect to a portion of the Notes
represented by a Book-Entry Note, the
Issuing Agent will exchange such
Book-Entry Note for two Book-Entry Notes,
one of which shall represent the Book-Entry
Notes for which withdrawal messages are
processed and shall be canceled
immediately after issuance, and the other
of which shall represent the other Notes
previously represented by the surrendered
Book-Entry Note and shall bear the CUSIP
number of the surrendered Book-Entry Note.
In the case of any Note sold through the
Offering Agent, as agent, if the purchase
price for any Book-Entry Note is not timely
paid to the Participants with respect to
such Note by the beneficial investor or
other purchaser thereof (or a person,
including an indirect participant in DTC,
acting on behalf of such investor or other
purchaser), such Participants and, in
turn, the related Offering Agent may enter
SDFS deliver orders through DTC's
Participant Terminal System reversing the
orders entered pursuant to settlement
Procedures F and G, respectively.
Thereafter, the Issuing Agent will deliver
the withdrawal message and take the
related actions described in the preceding
paragraph. If such failure shall have
occurred for any reason other than default
by the applicable Offering Agent to
perform its obligations hereunder or under
the Distribution Agreement, the Company
will reimburse such Offering Agent on an
equitable basis for its reasonable loss of
the use of funds during the period when the
funds were credited to the account of the
Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating
procedures then in effect. In the event
of a failure to settle with respect to a
Note that was to have been represented by
a Book-Entry Note also representing other
Notes, the Issuing Agent will provide, in
accordance with Settlement Procedure D, for
the authentication and issuance of a
Book-Entry Note representing such
remaining Notes and will make appropriate
entries in its records.
PART III: PROCEDURES FOR NOTES ISSUED
IN DEFINITIVE FORM
Denominations: The Definitive Notes will be issued
in denominations of $1,000 and integral
multiples thereof, unless otherwise
specified in the applicable Pricing
Supplement.
Payments of Principal
and Interest: Upon presentment and delivery of the
Definitive Note, the Issuing Agent upon
receipt of immediately available funds
from the Company will pay the principal
amount of each Definitive Note at Maturity
and the final installment of interest in
immediately available funds. All interest
payments on a Definitive Note, other than
interest due at Maturity, will be made at
the office or agency of the Company
maintained by the Company for such purpose
in the Borough of Manhattan, The City of
New York, or, at the option of the
Company, may be made by check mailed to
the address of the person entitled thereto
as such address shall appear in the
registry books of the Company. However,
holders of $10,000,000 or more in
aggregate principal amount of Definitive
Notes having the same Interest Payment
Dates will, at the option of the Company,
be entitled to receive payments of
interest, other than at Maturity, by wire
transfer of immediately available funds if
appropriate wire transfer instructions
have been received in writing by the
Issuing Agent not less than 15 days prior
to the applicable Interest Payment Date.
Such wire instructions, upon receipt by
the Trustee, shall remain in effect until
revoked by such Holder.
The Issuing Agent will provide monthly to
the Company a list of the principal,
premium, if any, and interest in each
currency to be paid on Definitive Notes
maturing in the next succeeding month. The
Issuing Agent will be responsible for
withholding taxes on interest paid as
required by applicable law, but shall be
relieved from any such responsibility if
it acts in good faith and in reliance upon
an opinion of counsel.
Definitive Notes presented to the Issuing
Agent at Maturity for payment will be
canceled by the Issuing Agent. All
canceled Definitive Notes held by the
Issuing Agent shall be destroyed, and the
Issuing Agent shall furnish to the Company
a certificate with respect to such
destruction.
Settlement
Procedures: Settlement Procedures with regard
to each Definitive Note purchased by any
Agent, as principal, or through any Agent,
as agent, shall be as follows:
A. The Offering Agent will advise the
Company by telephone of the following
Settlement information with regard to
each Note:
1. Exact name in which the Definitive
Note(s) is to be registered (the
"Registered owner")
2. Exact address or addresses of the
Registered Owner for delivery,
notices and payments of principal
and interest.
3. Taxpayer identification number of
the Registered Owner.
4. Principal amount of the Definitive
Note.
5. Denomination of the Definitive Note.
6. (a) Fixed Rate Notes:
(i) Interest Rate
(ii) Interest
Payment
Dates
(iii)Day Count
Convention
(A) 30/360
(B) Actual/360
(C) Actual/
Actual (and
applicable
periods)
(b) Floating Rate Notes:
(i) specify if:
(A) Regular
Floating Rate
(B) Floating
Rate/Fixed Rate
(Fixed Rate
Commencement Date)
(C) Inverse Floating
Rate (Fixed Interest
Rate)
(ii) Interest Rate
Basis or Bases
(and if CMT Rate
Notes, the design-
ated CMT Telerate
page and the desig-
nated CMT Maturity
Index)
(iii) Initial Interest Rate
(iv) Spread and/or
Spread Multiplier, if any
(iv) Initial Interest Re
set Date and Interest
Reset Dates
(vi) Interest Rate
Reset Period
(vii) Interest
Payment Dates
(viii)Interest
Payment Period
(ix) Regular Record Dates
(x) Index Maturity
(xi) Maximum and
Minimum Interest
Rates, if any
(xii) Day Count
Convention
(A) Actual/360
(B) Actual/
Actual (and
applicable
periods)
(xiii)Calculation
Agent
7. Price to public of the Definitive
Note (or whether the, Note is
being offered at varying prices
relating to prevailing market
prices at time of resale as
determined by the Offering Agent).
8. Trade Date.
9. Settlement Date (Original Issue
Date).
10. Stated Maturity Date.
11. Redemption provisions, if any,
including Initial Redemption
Date, Initial Redemption
Percentage and Annual Redemption
Percentage Reduction.
12. Optional Repayment Date(s)
13. Net proceeds to the Company.
14. The Offering Agent's commission
or underwriting discount.
15. Whether such Notes are being sold
to the Offering Agent as
principal or to an investor or
other purchaser through the
Offering Agent acting as agent
for the Company.
16. Whether such Note is being issued
with Original Issue Discount and
the terms thereof.
17. Such other information specified
with respect to the Notes
(whether by Addendum or
otherwise).
B. After receiving such settlement
information from the Offering Agent,
the Company will advise the Issuing
Agent of the above settlement
information by facsimile transmission
confirmed by telephone. The Company
will prepare a Pricing Supplement to
the Prospectus and deliver copies to
the Agent and will cause the Issuing
Agent to issue, authenticate and
deliver Notes.
C. The Issuing Agent will complete the
Definitive Note in the form approved by
the Company, the Offering Agent and the
Issuing Agent, and will make three
copies thereof (herein called "Stub l",
"Stub 2" and "Stub 3"):
l. Definitive Note with the Offering
Agent's confirmation, if traded
on a principal basis, or the
Offering Agent's customer
confirmation, if traded on an
agency basis.
2. Stub l for Issuing Agent.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Company.
D. With respect to each trade, the Issuing
Agent will deliver the Definitive Notes
and Stub 2 thereof to the Offering
Agent at the following applicable
address: Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Monkey Market
Clearance - MTNs, 75 Barclay Street,
Ground Floor Window C, New York, New
York 10080, Attention: Kevin Brennan,
(212) 602-6333, telecopier (212)
602-6332; Chase Securities, Inc., 1
Chase Manhattan Plaza, 15th Floor, New
York, New York 10081, Attention:
Medium-Term Note Desk, (212) 552-2969,
telecopier (212) 552-1594; Goldman,
Sachs & Co., 85 Broad Street, 18th
Floor, New York, New York 10004,
Attention: Registration Department,
(212) 902-1000, telecopier (212) 902-
3000; J.P. Morgan Securities Inc., 55
Exchange Place, Level A, New York, New
York 10260, Attention: Bill Davis,
(212) 648-4105, te1ecopier (212)
648-5098; and PaineWebber Incorporated,
Fixed Income Capital Markets, 11th
Floor, New York, New York 10019,
Attention: Ted Wachtell, (212)
713-2960, telecopier (212) 247-0371.
The Issuing Agent will keep Stub l.
The Offering Agent will acknowledge
receipt of the Definitive Note through a
broker's receipt and will keep Stub 2.
Delivery of the Definitive Note will be
made only against such acknowledgement
of receipt. Upon determination that
the Definitive Note has been
authorized, delivered and completed as
aforementioned, the Offering Agent will
wire the net proceeds of the Definitive
Note after deduction of its applicable
commission to the Company pursuant to
standard wire instructions given by the
Company.
E. In the case of Notes sold through the
Offering Agent, as agent, the Offering
Agent will deliver the Definitive Note
(with confirmations), as well as a copy
of the Prospectus and any applicable
Pricing Supplement or Supplements
received from the Issuing Agent to the
purchaser against payment in
immediately available funds.
F. The Issuing Agent will send Stub 3 to
the Company.
Settlement
Procedures
Timetable: For offers to purchase Definitive Notes
accepted by the Company, Settlement
Procedures "A" through "F" set forth above
shall be completed as soon as possible but
not later than the respective times (New
York City time) set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the
trade date
B 3:00 P.M. on Busi-
ness Day prior to
Settlement Date
C-D 2:15 P.M. on Set-
tlement Date
E 3:00 P.M. on Set
tlement Date
F 5:00 P.M. on Set
tlement Date
Failure to Settle: In the case of Notes sold through
the Offering Agent, as agent, if an
investor or other purchaser of a
Definitive Note from the Company shall
either fail to accept delivery of or make
payment for a Definitive Note on the date
fixed for settlement, the Offering Agent
will forthwith notify the Issuing Agent
and the Company by telephone, confirmed in
writing, and return the Definitive Note to
the Issuing Agent.
The Issuing Agent, upon receipt of the
Definitive Note from the Offering Agent,
will immediately advise the Company and
the Company will promptly arrange to
credit the account of the Offering Agent
in an amount of immediately available
funds equal to the amount previously paid
to the Company by such Offering Agent in
settlement for the Definitive Note. Such
credits will be made on the Settlement Date
if possible, and in any event not later
than the Business Day following the
Settlement Date; provided that the Company
has received notice on the same day. If
such failure shall have occurred for any
reason other than failure by such Offering
Agent to perform its obligations hereunder
or under the Distribution Agreement, the
Company will reimburse such Offering Agent
on an equitable basis for its reasonable
loss of the use of funds during the period
when the funds were credited to the
account of the Company. Immediately upon
receipt of the Definitive Note in respect
of which the failure occurred, the Issuing
Agent will cancel and destroy the
Definitive Note, make appropriate entries
in its records to reflect the fact that
the Note was never issued, and accordingly
notify in writing the Company.
EXHIBIT 4.5
[FORM OF FIXED RATE DEFINITIVE MEDIUM-TERM NOTE, SERIES 2]
REGISTERED PRINCIPAL AMOUNT
No. FX____ CUSIP NO. __________ $__________
SUNAMERICA INC.
MEDIUM-TERM NOTE, SERIES 2
(Fixed Rate)
NAME AND ADDRESS OF HOLDER: HOLDER'S TAXPAYER IDENTIFICATION NO.:
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
INTEREST PAYMENT DATES:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE
REDUCTION:
OPTIONAL REPAYMENT DATE(S):
DAY COUNT CONVENTION
[ ] 30/360 FOR THE PERIOD FROM TO
[ ] ACTUAL/360 FOR THE PERIOD FROM TO
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
SUNAMERICA INC., a Maryland corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to the
HOLDER IDENTIFIED ABOVE or registered assigns, the Principal Amount specified
above on the Stated Maturity Date specified above (except to the extent
redeemed or repaid prior to the Stated Maturity Date), and to pay interest
thereon at the Interest Rate per annum specified above, until the principal
hereof is paid or duly made available for payment. Reference herein to "this
Note," "hereof," "herein" and comparable terms shall include an Addendum
hereto if an Addendum is specified above.
The Company will pay interest on each Interest Payment Date
specified above, commencing on the first Interest Payment Date next succeeding
the Original Issue Date specified above, and on the Stated Maturity Date or
any Redemption Date or Optional Repayment Date (the date of each such Stated
Maturity Date, Redemption Date and Optional Repayment Date and the date on
which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Indenture being referred to
hereinafter as a "Maturity" with respect to principal payable on such date);
provided, however, that if the Original Issue Date is between a record date
(as defined below) and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date succeeding the
Original Issue Date. Except as provided above, interest payments will be made
on the Interest Payment Dates shown above. Unless otherwise specified above,
the "record date" shall be the date 15 calendar days (whether or not a
Business Day) prior to the applicable Interest Payment Date. Interest on this
Note will accrue from and including the most recent Interest Payment Date to
which interest has been paid or duly provided for or, if no interest has been
paid, from the Original Issue Date specified above, to, but excluding such
Interest Payment Date. If the Maturity or an Interest Payment Date falls on a
day which is not a Business Day as defined below, the payment due on such
Maturity or Interest Payment Date will be paid on the next succeeding Business
Day with the same force and effect as if made on such Maturity or Interest
Payment Date, as the case may be, and no interest shall accrue with respect to
such payment for the period from and after such Maturity or Interest Payment
Date. The interest 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 Note is registered at the close of business on the record
date for such Interest Payment Date. Any such interest which is payable, but
not punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on such record date, and may be paid to the Person in whose
name this Note is 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 Holder of this Note not less than 15 days
preceding such subsequent record date, all as more fully provided in the
Indenture.
Payment of the principal of and interest on this Note will be made
at the office or agency of the Company maintained by the Company for such
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payments of public and private debts; provided, however, that at
the option of the Company, payment of interest due other than at Maturity may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the registry books of the Company; and provided,
further, that the repayment of the principal of and interest on this Note on
any Optional Repayment Date(s), if any, indicated above shall be made upon
satisfaction of the provisions herein; and provided, further, that AT THE
OPTION OF THE COMPANY, the Holder of Notes with an aggregate principal amount
of $10,000,000 or more will be entitled to receive payments of principal of
and interest on this Note by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received by the Trustee not
less than 15 days prior to the applicable payment date. Such wire
instructions, upon receipt by the Trustee, shall remain in effect until
revoked by such Holder.
Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee (as defined below) under the Indenture, by the
manual signature of one of its authorized officers, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
This Note is one of a duly authorized series of Securities
(hereinafter called the "Securities") of the Company designated as its
Medium-Term Notes, Series 2 (the "Notes"). The Notes are issued and to be
issued under an Indenture dated as of April 15, 1993, as amended (herein
called the "Indenture") between the Company and The First National Bank of
Chicago, a national banking association (the "Trustee," which term includes
any successor Trustee with respect to the Notes under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights thereunder of the Company, the Trustee
and the Holders of the Notes and the terms upon which the Notes are to be
authenticated and delivered. The terms of individual Notes may vary with
respect to interest rates or interest rate formulas, issue dates, maturity,
redemption, repayment, currency of payment and otherwise.
Unless otherwise provided above and in accordance with the
provisions herein, this Note is not subject to any sinking fund and is not
redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on
any date on and after the Initial Redemption Date, if any, specified above.
If no Initial Redemption Date is set forth above, this Note may not be
redeemed prior to the Stated Maturity Date. On and after the Initial
Redemption Date, if any, this Note may be redeemed at any time in whole or
from time to time in part in increments of $1,000 (provided that any remaining
principal hereof shall be at least $1,000) at the option of the Company at the
applicable Redemption Price (as defined below), together with accrued interest
hereon at the applicable rate payable to the date of redemption (each such
date, a "Redemption Date"), on written notice given not more than 60 nor less
than 30 days prior to the Redemption Date and in accordance with the
provisions of the Indenture. In the event of redemption of this Note in part
only, a new Note for the unredeemed portion hereof shall be issued in the name
of the Holder hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified above, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Note may be subject to repayment at the option of the Holder
on any Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity Date. On any
Optional Repayment Date, this Note shall be repayable in whole or in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $1,000) at the option of the Holder hereof at a repayment price, unless
otherwise specified above, equal to 100% of the principal amount to be repaid,
together with interest thereon payable to the date of repayment. For this Note
to be repaid in whole or in part at the option of the Holder hereof, this Note
must be received, with the form entitled "Option to Elect Repayment" below
duly completed, by the Trustee at its Corporate Trust Office, or such other
address of which the Company shall from time to time notify the Holders of the
Notes, not more than 60 nor less than 30 days prior to the related Optional
Repayment Date. Exercise of such repayment option by the Holder hereof shall
be irrevocable.
Interest payments on this Note shall include interest accrued
from, and including, the Original Issue Date indicated above, or the most
recent date to which interest has been paid or duly provided for, to, but
excluding, the related Interest Payment Date or Maturity, as the case may be.
Interest payments for this Note shall be computed and paid on the basis of a
360-day year of twelve 30-day months if the Day Count Convention specified
above is "30/360" for the period specified thereunder, on the basis of the
actual number of days in the related month and a 360-day year if the Day Count
Convention specified above is "Actual/360" for the period specified thereunder
or on the basis of the actual number of days in the related year and month if
the Day Count Convention specified above is "Actual/Actual" for the period
specified thereunder.
As used herein, "Business Day" means, unless otherwise specified
above, any day that in The City of New York is not a day on which banking
institutions are authorized or required by law or regulation to close.
Any provision contained herein with respect to the calculation of
the rate of interest applicable to this Note, its payment dates or any other
matter relating hereto may be modified as specified in an Addendum relating
hereto if so specified above.
If an Event of Default with respect to the Notes shall occur and
be continuing, the principal of all the Notes may be declared due and payable
in the manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the 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
Securities of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the Holder of each outstanding
Security affected thereby, (i) extend the stated maturity of the principal 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 change the currency in which the principal thereof
(including any amount in respect of original issue discount) or interest
thereon is payable or reduce the amount of any original issue discount
security payable upon acceleration or provable in bankruptcy or impair the
right to institute suit for the enforcement of any payment on any Security
when due or (ii) reduce the aforesaid percentage in principal amount of
Securities of any series issued under such Indenture, the consent of the
Holders of which is required for any such modification. It is also provided
in the Indenture that, with respect to certain defaults or Events of Default
regarding the Securities of any series, prior to any declaration accelerating
the maturity of such Securities, the Holders of a majority in aggregate
principal amount Outstanding of the Securities of such series (or, in the case
of certain defaults or Events of Default, all or certain series of the
Securities) may on behalf of the Holders of all the Securities of such series
(or all or certain series of the Securities, as the case may be) waive any
such past default or Event or Default and its consequences. The preceding
sentence shall not, however, apply to a default in the payment of the
principal of or interest on any of the Securities. Any such consent or waiver
by the Holder of this Note (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and any Notes which may be issued in exchange or
substitution herefor or on registration of transfer hereof, irrespective of
whether or not any notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the time, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the registry
books of the Company, upon surrender of this Note for registration of transfer
at the office or agency of the Company maintained by the Company for such
purpose in the Borough of Manhattan, The City of New York, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder hereof or by its attorney
duly authorized in writing, and thereupon one or more new Notes of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by
the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed, manually or in facsimile, and in imprint or facsimile of its
corporate seal to be imprinted hereon.
[FACSIMILE OF SEAL] SUNAMERICA INC.
By:
-------------------
Name:
Title:
Attest:
By: ________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By: ________________________
Authorized officer
Dated: _____________ __________________________________________________
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest
to the repayment date, to the undersigned, at
____________________________________________________
_______________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its
Corporate Trust Office, or at such other place or places of which the Company
shall from time to time notify the Holder of this Note, not more than 60 nor
less than 30 days prior to the Optional Repayment Date, if any, shown on the
face of this Note, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be increments of $1,000) which
the Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the
portion not being repaid).
$_____________
____________________________________
NOTICE: The signature on this
Date: ________________ Option to Elect Repayment must correspond
with the name as written upon the face of
this Note in every particular, without
alteration or enlargement or any change
whatever.
Signature Guarantee:
____________________
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby
sell(s), assign(s) and transfer(s) unto (insert Taxpayer Identification no.)
____________________________________________________________
______________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
_____________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ______________________________
______________________________ attorney to transfer said Note on the books of
the Company with full power of substitution in the premises.
Dated: __________
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or any
change whatsoever.
Signature Guarantee:
____________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM -- as tenants in common
UNIF GIFT MIN ACT -- ...............Custodian...............
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above
list.
EXHIBIT 4.6
[FORM OF FIXED RATE GLOBAL MEDIUM-TERM NOTE, SERIES 2]
Unless and until this certificate is exchanged in whole or in part
for Notes in definitive registered form, this Note may not be transferred
except as a whole by The Depository Trust Company, a New York corporation
("DTC"), to its nominee or by its nominee to DTC or another nominee of DTC or
by DTC or any such nominee to a successor Depositary or a nominee of such
successor Depositary. Any certificate issued in exchange herefor shall be
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment in respect hereof shall
be made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC).
REGISTERED PRINCIPAL AMOUNT
No. FX CUSIP NO.
SUNAMERICA INC.
MEDIUM-TERM NOTE, SERIES 2
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
INTEREST PAYMENT DATES:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
DAY COUNT CONVENTION
[ ] 30/360 FOR THE PERIOD FROM TO
[ ] ACTUAL/360 FOR THE PERIOD FROM TO
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
SUNAMERICA INC., a Maryland corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the Principal Amount specified above on the Stated
Maturity Date specified above (except to the extent redeemed or repaid prior
to the Stated Maturity Date), and to pay interest thereon at the Interest Rate
per annum specified above, until the principal hereof is paid or duly made
available for payment. Reference herein to "this Note," "hereof," "herein" and
comparable terms shall include an Addendum hereto if an Addendum is specified
above.
The Company will pay interest on each Interest Payment Date
specified above, commencing on the first Interest Payment Date next succeeding
the Original Issue Date specified above, and on the Stated Maturity Date or
any Redemption Date or Optional Repayment Date (the date of each such Stated
Maturity Date, Redemption Date and Optional Repayment Date and the date on
which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Indenture being referred to
hereinafter as a "Maturity" with respect to principal payable on such date);
provided, however, that if the Original Issue Date is between a record date
(as defined below) and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date succeeding the
Original Issue Date. Except as provided above, interest payments will be made
on the Interest Payment Dates shown above. Unless otherwise specified above,
the "record date" shall be the date 15 calendar days (whether or not a
Business Day) prior to the applicable Interest Payment Date. Interest on this
Note will accrue from and including the most recent Interest Payment Date to
which interest has been paid or duly provided for or, if no interest has been
paid, from the Original Issue Date specified above, to, but excluding such
Interest Payment Date. If the Maturity or an Interest Payment Date falls on a
day which is not a Business Day as defined below, the payment due on such
Maturity or Interest Payment Date will be paid on the next succeeding Business
Day with the same force and effect as if made on such Maturity or Interest
Payment Date, as the case may be, and no interest shall accrue with respect to
such payment for the period from and after such Maturity or Interest Payment
Date. The interest 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 Note is registered at the close of business on the record
date for such Interest Payment Date. Any such interest which is payable, but
not punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on such record date, and may be paid to the Person in whose
name this Note is 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 Holder of this Note not less than 15 days
preceding such subsequent record date, all as more fully provided in the
Indenture.
Payment of the principal of and interest on this Note will be made
at the office or agency of the Company maintained by the Company for such
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payments of public and private debts; provided, however, that at
the option of the Company, payment of interest due other than at Maturity may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the registry books of the Company; and provided,
further, that the repayment of the principal of and interest on this Note on
any Optional Repayment Date(s), if any, indicated above shall be made upon
satisfaction of the provisions herein; and provided, further, that AT THE
OPTION OF THE COMPANY, the Holder of Notes with an aggregate principal amount
of $10,000,000 or more will be entitled to receive payments of principal of
and interest on this Note by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received by the Trustee not
less than 15 days prior to the applicable payment date. Such wire
instructions, upon receipt by the Trustee, shall remain in effect until
revoked by such Holder.
Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee (as defined below) under the Indenture, by the
manual signature of one of its authorized officers, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
This Note is one of a duly authorized series of Securities
(hereinafter called the "Securities") of the Company designated as its
Medium-Term Notes, Series 2 (the "Notes"). The Notes are issued and to be
issued under an Indenture dated as of April 15, 1993, as amended (herein
called the "Indenture") between the Company and The First National Bank of
Chicago, a national banking association (the "Trustee," which term includes
any successor Trustee with respect to the Notes under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights thereunder of the Company, the Trustee
and the Holders of the Notes and the terms upon which the Notes are to be
authenticated and delivered. The terms of individual Notes may vary with
respect to interest rates or interest rate formulas, issue dates, maturity,
redemption, repayment, currency of payment and otherwise.
Except as otherwise provided in the Indenture, this Note will be
issued in global form only registered in the name of the Depositary or its
nominee. This Note will not be issued in definitive form, except as otherwise
provided in the Indenture, and ownership of this Note shall be maintained in
book-entry form by the Depositary for the accounts of participating
organizations of the Depositary.
Unless otherwise provided above and in accordance with the
provisions herein, this Note is not subject to any sinking fund and is not
redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on
any date on and after the Initial Redemption Date, if any, specified above.
If no Initial Redemption Date is set forth above, this Note may not be
redeemed prior to the Stated Maturity Date. On and after the Initial
Redemption Date, if any, this Note may be redeemed at any time in whole or
from time to time in part in increments of $1,000 (provided that any remaining
principal hereof shall be at least $1,000) at the option of the Company at the
applicable Redemption Price (as defined below), together with accrued interest
hereon at the applicable rate payable to the date of redemption (each such
date, a "Redemption Date"), on written notice given not more than 60 nor less
than 30 days prior to the Redemption Date and in accordance with the
provisions of the Indenture. In the event of redemption of this Note in part
only, a new Note for the unredeemed portion hereof shall be issued in the name
of the Holder hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified above, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Note may be subject to repayment at the option of the Holder
on any Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity Date. On any
Optional Repayment Date, this Note shall be repayable in whole or in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $1,000) at the option of the Holder hereof at a repayment price, unless
otherwise specified above, equal to 100% of the principal amount to be repaid,
together with interest thereon payable to the date of repayment. For this Note
to be repaid in whole or in part at the option of the Holder hereof, this Note
must be received, with the form entitled "Option to Elect Repayment" below
duly completed, by the Trustee at its Corporate Trust Office, or such other
address of which the Company shall from time to time notify the Holders of the
Notes, not more than 60 nor less than 30 days prior to the related Optional
Repayment Date. Exercise of such repayment option by the Holder hereof shall
be irrevocable. With respect to Notes represented by global securities, any
option for repayment may be exercised by the applicable participant that has an
account with the Depositary, on behalf of the owners of the beneficial
interests in the Notes represented by such global securities, by delivering a
written notice substantially similar to the above-referenced form, duly
completed, to the Trustee at the place and within the period described above.
All such notices shall be executed by a duly authorized officer of such
participant (with signature guaranteed) and shall be irrevocable.
Interest payments on this Note shall include interest accrued
from, and including, the Original Issue Date indicated above, or the most
recent date to which interest has been paid or duly provided for, to, but
excluding, the related Interest Payment Date or Maturity, as the case may be.
Interest payments for this Note shall be computed and paid on the basis of a
360-day year of twelve 30-day months if the Day Count Convention specified
above is "30/360" for the period specified thereunder, on the basis of the
actual number of days in the related month and a 360-day year if the Day Count
Convention specified above is "Actual/360" for the period specified thereunder
or on the basis of the actual number of days in the related year and month if
the Day Count Convention specified above is "Actual/Actual" for the period
specified thereunder.
As used herein, "Business Day" means, unless otherwise specified
above, any day that in The City of New York is not a day on which banking
institutions are authorized or required by law or regulation to close.
Any provision contained herein with respect to the calculation of
the rate of interest applicable to this Note, its payment dates or any other
matter relating hereto may be modified as specified in an Addendum relating
hereto if so specified above.
If an Event of Default with respect to the Notes shall occur and
be continuing, the principal of all the Notes may be declared due and payable
in the manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the 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
Securities of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the Holder of each outstanding
Security affected thereby, (i) extend the stated maturity of the principal 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 change the currency in which the principal thereof
(including any amount in respect of original issue discount) or interest
thereon is payable or reduce the amount of any original issue discount
security payable upon acceleration or provable in bankruptcy or impair the
right to institute suit for the enforcement of any payment on any Security
when due or (ii) reduce the aforesaid percentage in principal amount of
Securities of any series issued under such Indenture, the consent of the
Holders of which is required for any such modification. It is also provided
in the Indenture that, with respect to certain defaults or Events of Default
regarding the Securities of any series, prior to any declaration accelerating
the maturity of such Securities, the Holders of a majority in aggregate
principal amount Outstanding of the Securities of such series (or, in the case
of certain defaults or Events of Default, all or certain series of the
Securities) may on behalf of the Holders of all the Securities of such series
(or all or certain series of the Securities, as the case may be) waive any
such past default or Event or Default and its consequences. The preceding
sentence shall not, however, apply to a default in the payment of the
principal of or interest on any of the Securities. Any such consent or waiver
by the Holder of this Note (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and any Notes which may be issued in exchange or
substitution herefor or on registration of transfer hereof, irrespective of
whether or not any notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the time, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the registry
books of the Company, upon surrender of this Note for registration of transfer
at the office or agency of the Company maintained by the Company for such
purpose in the Borough of Manhattan, The City of New York, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder hereof or by its attorney
duly authorized in writing, and thereupon one or more new Notes of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by
the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed, manually or in facsimile, and an imprint or facsimile of its
corporate seal to be imprinted hereon.
[FACSIMILE OF SEAL] SUNAMERICA INC.
By:
____________________________
Name:
Title:
Attest:
By: _______________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By: _______________________
Authorized officer
Dated: ____________________
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest
to the repayment date, to the undersigned, at
___________________________________________________
______________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its
Corporate Trust Office, or at such other place or places of which the Company
shall from time to time notify the Holder of this Note, not more than 60 nor
less than 30 days prior to the Optional Repayment Date, if any, shown on the
face of this Note, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be increments of $1,000) which
the Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the
portion not being repaid).
$_____________ ______________________________________
NOTICE: The signature on this
Date: ________________ Option to Elect Repayment must correspond
with the name as written upon the face of
this Note in every particular, without
alteration or enlargement or any change
whatever.
Signature Guarantee:
_______________________
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby
sell(s), assign(s) and transfer(s) unto (insert Taxpayer Identification no.)
_________________________________________________________
___________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________________________________
__________________________________________ attorney to transfer said Note on
the books of the Company with full power of substitution in the premises.
Dated: __________ ________________________________________________
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or any
change whatsoever.
Signature Guarantee:
____________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM -- as tenants in common
UNIF GIFT MIN ACT -- ...............Custodian...............
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT -- as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above
list.
EXHIBIT 4.7
[FORM OF FLOATING RATE DEFINITIVE MEDIUM-TERM NOTE, SERIES 2]
REGISTERED CUSIP No. __________ PRINCIPAL AMOUNT
No. FLR___ $______________
SUNAMERICA INC.
MEDIUM-TERM NOTE, SERIES 2
(Floating Rate)
NAME AND ADDRESS OF HOLDER: HOLDER`S TAXPAYER IDENTIFICATION NO.:
INTEREST RATE BASIS: ORIGINAL ISSUE DATE: STATED MATURITY DATE:
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD: INITIAL INTEREST RESET INTEREST PAYMENT DATES:
DATE:
SPREAD MULTIPLIER: INTEREST RATE RESET INTEREST RESET DATES:
PERIOD:
MAXIMUM INTEREST MINIMUM INTEREST RATE: INITIAL REDEMPTION DATE:
RATE:
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: PERCENTAGE REDUCTION: DATE(S):
CALCULATION AGENT:
INTEREST CALCULATION DAY COUNT CONVENTION
[ ] Regular Floating Rate Note [ ] Actual/360 for the period
[ ] Floating Rate/Fixed Rate from to
Fixed Rate Commencement Date: [ ] Actual/Actual to the period
from to
Fixed Interest Rate:
[ ] Inverse Floating Rate Note
Fixed Interest Rate:
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
IF THE INTEREST RATE BASIS IS THE CMT RATE:
Designated CMT Telerate Designated CMT Maturity
Index:
Page: [ ] Page 7055
[ ] Page 7052
OTHER PROVISIONS:
SUNAMERICA INC., a Maryland corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to the
HOLDER IDENTIFIED ABOVE, or registered assigns, the Principal Amount specified
above on the Stated Maturity Date specified above (except to the extent
redeemed or repaid prior to the Stated Maturity Date), and to pay interest
thereon, at a rate per annum equal to the Initial Interest Rate specified
above until the Initial Interest Reset Date specified above and thereafter at
a rate per annum determined in accordance with the provisions hereof and any
Addendum relating hereto depending upon the Interest Rate Basis or Bases, if
any, and such other terms specified above, until the principal hereof is paid
or duly made available for payment. Reference herein to "this Note,"
"hereof," "herein" and comparable terms shall include an Addendum hereto if an
Addendum is specified above.
The Company will pay interest monthly, quarterly, semi-annually,
annually or such other period as specified above under "Interest Payment
Period," on each Interest Payment Date specified above, commencing on the
first Interest Payment Date specified above next succeeding the Original Issue
Date specified above, and on the Stated Maturity Date or any Redemption Date
or Optional Repayment Date (the date of each such Stated Maturity Date,
Redemption Date and Optional Repayment Date and the date on which principal or
an installment of principal is due and payable by declaration of acceleration
pursuant to the Indenture being referred to hereinafter as a "Maturity" with
respect to principal payable on such date); provided, however, that if the
Original Issue Date is between a Regular Record Date (as defined below) and
the next succeeding Interest Payment Date, interest payments will commence on
the second Interest Payment Date succeeding the Original Issue Date; and
provided, further, that if an Interest Payment Date (other than an Interest
Payment Date at Maturity) would fall on a day that is not a Business Day (as
defined below), such Interest Payment Date shall be the following day that is a
Business Day, except that in the case the Interest Rate Basis is LIBOR, as
indicated above, if such next Business Day falls in the next calendar month,
such Interest Payment Date shall be the next preceding day that is a Business
Day. Except as provided above, interest payments will be made on the Interest
Payment Dates shown above. Unless otherwise specified above, the "record
date" shall be the date 15 calendar days (whether or not a Business Day) prior
to the applicable Interest Payment Date. Interest on this Note will accrue
from and including the Original Issue Date specified above, at the rates
determined from time to time as specified herein, until the principal hereof
has been paid or made available for payment. If the Maturity falls on a day
which is not a Business Day as defined below, the payment due on such Maturity
will be paid on the next succeeding Business Day with the same force and
effect as if made on such Maturity and no interest shall accrue with respect
to such payment for the period from and after such Maturity. The interest 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
Note is registered at the close of business on the record date for such
Interest Payment Date. Any such interest which is payable, but not punctually
paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest"), shall forthwith cease to be payable to the registered
Holder on such record date, and may be paid to the Person in whose name this
Note is 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 Holder of this Note not less than 15 days preceding such
subsequent record date, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note will be made
at the office or agency of the Company maintained by the Company for such
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company, payment of interest due other than at Maturity may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the registry books of the Company; and provided,
further, that the repayment of the principal of and interest on this Note on
any Optional Repayment Date(s), if any, indicated above shall be made upon
satisfaction of the provisions herein; and provided, further, that AT THE
OPTION OF THE COMPANY, the Holder of Notes with an aggregate principal amount
of $10,000,000 or more will be entitled to receive payments of principal of
and interest on this Note by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received by the Trustee not
less than 15 days prior to the applicable payment date. Such wire
instructions, upon receipt by the Trustee, shall remain in effect until
revoked by such Holder.
Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee under the Indenture, by the manual signature of
one of its authorized officers, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose. This Note is
one of a duly authorized series of Securities (hereinafter called the
"Securities") of the Company designated as its Medium-Term Notes, Series 2
(the "Notes"). The Notes are issued and to be issued under an Indenture dated
as of April 15, 1993, as amended (herein called the "Indenture") between the
Company and The First National Bank of Chicago, a national banking association
(the "Trustee," which term includes any successor Trustee with respect to the
Notes under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights
thereunder of the Company, the Trustee and the Holders of the Notes and the
terms upon which the Notes are to be authenticated and delivered. The terms
of individual Notes may vary with respect to interest rates or interest rate
formulas, issue dates, maturity, redemption, repayment, currency of payment
and otherwise.
Unless otherwise provided above and in accordance with the
provisions herein, this Note is not subject to any sinking fund and is not
redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on
any date on and after the Initial Redemption Date, if any, specified above.
If no Initial Redemption Date is set forth above, this Note may not be
redeemed prior to the Stated Maturity Date. On and after the Initial
Redemption Date, if any, this Note may be redeemed at any time in whole or
from time to time in part in increments of $1,000 (provided that any remaining
principal hereof shall be at least $1,000) at the option of the Company at the
applicable Redemption Price (as defined below), together with accrued interest
hereon at the applicable rate payable to the date of redemption (each such
date, a "Redemption Date"), on written notice given not more than 60 nor less
than 30 days prior to the Redemption Date and in accordance with the
provisions of the Indenture. In the event of redemption of this Note in part
only, a new Note for the unredeemed portion hereof shall be issued in the name
of the Holder hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified above, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Note may be subject to repayment at the option of the Holder
on any Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity Date. On any
Optional Repayment Date, this Note shall be repayable in whole or in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $1,000) at the option of the Holder hereof at a repayment price, unless
otherwise specified above, equal to 100% of the principal amount to be repaid,
together with interest thereon payable to the date of repayment. For this Note
to be repaid in whole or in part at the option of the Holder hereof, this Note
must be received, with the form entitled "Option to Elect Repayment" below
duly completed, by the Trustee at its Corporate Trust Office, or such other
address of which the Company shall from time to time notify the Holders of the
Notes, not more than 60 nor less than 30 days prior to the related Optional
Repayment Date. Exercise of such repayment option by the Holder hereof shall
be irrevocable.
The interest rate borne by this Note shall be determined as
follows:
1. If this Note is designated as a Regular Floating Rate Note
above, then, except as described below, this Note shall bear interest at
the rate determined by reference to the applicable Interest Rate Basis
shown above (i) plus or minus the applicable Spread, if any, and/or (ii)
multiplied by the applicable Spread Multiplier, if any, specified and
applied in the manner described above. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note is payable
shall be reset as of each Interest Reset Date specified above; provided,
however, that the interest rate in effect for the period from the
Original Issue Date to the Initial Interest Reset Date will be the
Initial Interest Rate.
2. If this Note is designated as a Floating Rate/Fixed Rate
Note above, then, except as described below, this Note shall bear
interest at the rate determined by reference to the applicable Interest
Rate Basis shown above (i) plus or minus the applicable Spread, if any,
and/or (ii) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described above. Commencing on the
Initial Interest Reset Date, the rate at which interest on this Note is
payable shall be reset as of each Interest Reset Date specified above;
provided, however, that (i) the interest rate in effect for the period
from the Original Issue Date to the Initial Interest Reset Date shall be
the Initial Interest Rate; and (ii) the interest rate in effect
commencing on, and including, the Fixed Rate Commencement Date to
Maturity shall be the Fixed Interest Rate, if such a rate is specified
above, or if no such Fixed Interest Rate is so specified, the interest
rate in effect hereon on the day immediately preceding the Fixed Rate
Commencement Date.
3. If this Note is designated as an Inverse Floating Rate Note
above, then, except as described below, this Note will bear interest
equal to the Fixed Interest Rate indicated above minus the rate
determined by reference to the Interest Rate Basis shown above (i) plus
or minus the applicable Spread, if any, and/or (ii) multiplied by the
applicable Spread Multiplier, if any, specified and applied in the
manner described above. Commencing on the Initial Interest Reset Date,
the rate at which interest on this Note is payable shall be reset as of
each Interest Rate Reset Date specified above; provided, however, that
the interest rate in effect for the period from the Original Issue Date
to the Initial Interest Reset Date shall be the Initial Interest Rate.
4. Notwithstanding the foregoing, if this Note is designated
above as having an Addendum attached, the Note shall bear interest in
accordance with the terms described in such Addendum.
Except as provided above, the interest rate in effect on each day
shall be (a) if such day is an Interest Reset Date, the interest rate
determined as of the Interest Determination Date (as defined below)
immediately preceding such Interest Reset Date or (b) if such day is not an
Interest Reset Date, the interest rate determined as of the Interest
Determination Date immediately preceding the next preceding Interest Reset
Date. The interest rate with respect to each Interest Rate Basis shall be
determined in accordance with the applicable provision below. If any Interest
Reset Date (which term includes the term Initial Interest Reset Date unless
the context otherwise requires) would otherwise be a day that is not a Business
Day, such Interest Reset Date shall be postponed to the next succeeding day
that is a Business Day, except that if an Interest Rate Basis specified on the
face hereof is LIBOR and such next Business Day falls in the next succeeding
calendar month, such Interest Reset Date shall be the next preceding Business
Day.
Unless otherwise specified above, interest payable on this Note on
any Interest Payment Date shall be the amount of interest accrued from and
including the next preceding Interest Payment Date in respect of which
interest has been paid (or from and including the Original Issue Date
specified above, if no interest has been paid), to but excluding the related
Interest Payment Date or maturity, as the case may be. Unless otherwise
specified above, accrued interest hereon shall be an amount calculated by
multiplying the face amount hereof by an accrued interest factor. Such
accrued interest factor shall be computed by adding the interest factor
calculated for each day in the period for which accrued interest is being
calculated. Unless otherwise specified above, the interest factor for each
such day shall be computed by dividing the interest rate applicable to such
day by 360 if the Day Count Convention specified above is "Actual/360" for the
period specified thereunder or by the actual number of days in the year if the
Day Count Convention specified above is "Actual/Actual" for the period
specified thereunder. The interest factor for Notes for which the interest
rate is calculated with reference to two or more Interest Rate Bases will be
calculated in each period in the same manner as if only one of the applicable
Interest Rate Bases applied as specified above.
Unless otherwise specified above, the "Interest Determination
Date" with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate,
the Federal Funds Rate and the Prime Rate will be the second Business Day
preceding each Interest Reset Date; the "Interest Determination Date" with
respect to LIBOR shall be the second London Business Day (as defined below)
preceding each Interest Reset Date; the "Interest Determination Date" with
respect to the Eleventh District Cost of Funds Rate shall be the last working
day of the month immediately preceding each Interest Reset Date on which the
Federal Home Loan Bank of San Francisco (the "FHLB of San Francisco")
publishes the Index (as defined below); the "Interest Determination Date" with
respect to the Treasury Rate will be the day in the week in which the related
Interest Reset Date falls on which day Treasury bills (as defined below)
normally would be auctioned (Treasury bills are normally sold at auction on
Monday of each week, unless that day is a legal holiday, in which case the
auction is normally held on the following Tuesday, except that such auction
may be held on the preceding Friday); provided, however, that if, as a result
of a legal holiday, an auction is held on the Friday of the week preceding the
related Interest Reset Date, the related Interest Determination Date shall be
such preceding Friday; and provided, further, that if an auction shall fall on
any Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day following such auction. If the interest rate of this Note
is determined with reference to two or more Interest Rate Bases, the Interest
Determination Date pertaining to this Note will be the latest Business Day
which is at least two Business Days prior to such Interest Reset Date on which
each Interest Rate Basis shall be determinable. Each Interest Rate Basis
shall be determined on such date, and the applicable interest rate shall take
effect on the related Interest Reset Date.
Unless otherwise specified above, the "Calculation Date"
pertaining to any Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is
not a Business Day, the next succeeding Business Day or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity, as the case may
be. All calculations on this Note shall be made by the Calculation Agent
specified above or such successor thereto as is duly appointed by the Company.
All percentages resulting from any calculation on this Note will
be rounded to the nearest one hundred-thousandth of a percentage point, with
five one millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all dollar amounts
used in or resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upward).
As used herein, "Business Day" means, unless otherwise specified
above, any day that in The City of New York is not a day on which banking
institutions are authorized or required by law or regulation to close and, if
the Interest Rate Basis shown above is LIBOR, is also a London Business Day.
As used herein, "London Business Day" means any day on which
dealings in deposits in U.S. dollars are transacted in the London interbank
market.
Determination of CD Rate. If an Interest Rate Basis for this Note
is the CD Rate, as indicated above, the CD Rate shall be determined on the
applicable Interest Determination Date (a "CD Rate Interest Determination
Date"), as the rate on such date for negotiable certificates of deposit having
the Index Maturity specified above as published by the Board of Governors of
the Federal Reserve System in "Statistical Release H.15(519), Selected
Interest Rates" or any successor publication ("H.15(519)"), under the heading
"CDs (Secondary Market)," or, if not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on such CD Rate Interest
Determination Date for negotiable certificates of deposit of the Index
Maturity specified above as published by the Federal Reserve Bank of New York
in its daily statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" or any successor publication ("Composite Quotations")
under the heading "Certificates of Deposit." If such rate is not yet
published in either H.15(519) or the Composite Quotations by 3:00 P.M., New
York City time, on the related Calculation Date, then the CD Rate on such CD
Rate Interest Determination Date will be calculated by the Calculation Agent
and will be the arithmetic mean of the secondary market offered rates as of
10:00 A.M., New York City time, on such CD Rate Interest Determination Date,
of three leading non-bank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent for
negotiable certificates of deposit of major United States money market banks
for negotiable certificates of deposit with a remaining maturity closest to
the Index Maturity designated above in an amount that is representative for a
single transaction in that market at that time; provided, however, that if the
dealers so selected as aforesaid by the Calculation Agent are not quoting as
set forth above, the CD Rate determined on such CD Rate Interest Determination
Date shall be the CD Rate in effect on such CD Rate Interest Determination
Date.
Determination of CMT Rate. If an Interest Rate Basis for this
Note is the CMT Rate, as indicated above, the CMT Rate shall be determined on
the applicable Interest Determination Date (a "CMT Rate Interest Determination
Date"), as the rate displayed on the Designated CMT Telerate Page under the
caption "...Treasury Constant Maturities...Federal Reserve Board Release
H.15...Mondays Approximately 3:45 P.M.," under the column for the Designated
CMT Maturity Index for (i) if the Designated CMT Telerate Page is 7055, the
rate on such CMT Rate Interest Determination Date and (ii) if the Designated
CMT Telerate Page is 7052, the week, or the month, as applicable, ended
immediately preceding the week in which the related CMT Rate Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page or is not displayed by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest Determination
Date will be such treasury constant maturity rate for the Designated CMT
Maturity Index as published in the relevant H.15(519). If such rate is no
longer published or is not published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date
with respect to such Interest Reset Date as may then be published by either
the Board of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in the relevant H.15(519). If such information is not provided
by 3:00 P.M., New York City time, on the related Calculation Date, then the
CMT Rate on the CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic
mean of the secondary market closing offer side prices as of approximately 3:30
P.M., New York City time, on such CMT Rate Interest Determination Date
reported, according to their written records, by three leading primary United
States government securities dealers (each, a "Reference Dealer") in The City
of New York selected by the Calculation Agent (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for the most
recently issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the Designated
CMT Maturity Index and a remaining term to maturity of not less than such
Designated CMT Maturity Index minus one year. If the Calculation Agent is
unable to obtain three such Treasury Note quotations, the CMT Rate on such CMT
Rate Interest Determination Date will be calculated by the Calculation Agent
and will be a yield to maturity based on the arithmetic mean of the secondary
market offer side prices as of approximately 3:30 P.M., New York City time, on
such CMT Rate Interest Determination Date of three Reference Dealers in The
City of New York (from five such Reference Dealers selected by the Calculation
Agent and eliminating the highest quotation (or, in the event of equality, one
of the highest) and the lowest quotation (or, in the event of equality, one of
the lowest)), for Treasury Notes with an original maturity of the number of
years that is the next highest to the Designated CMT Maturity Index and a
remaining term to maturity closest to the Designated CMT Maturity Index and in
an amount of at least $100 million. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided however,
that if fewer than three Reference Dealers so selected by the Calculation
Agent are quoting as mentioned herein, the CMT Rate determined as of such CMT
Rate Interest Determination Date will be the CMT Rate in effect on such CMT
Rate Interest Determination Date. If two Treasury Notes with an original
maturity as described in the second preceding sentence have remaining terms to
maturity equally close to the Designated CMT Maturity Index, the Calculation
Agent will obtain from five Reference Dealers quotations for the Treasury Note
with the shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service specified above (or any other page as may replace such page
on that service for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519)) for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519). If no such page is specified above, the
Designated CMT Telerate Page shall be 7052 for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified above with respect to which the CMT Rate will be calculated.
If no such maturity is specified above, the Designated CMT Maturity Index
shall be 2 years.
Determination of Commercial Paper Rate. If an Interest Rate Basis
for this Note is the Commercial Paper Rate, as indicated above, the Commercial
Paper Rate shall be determined on the applicable Interest Determination Date
(a "Commercial Paper Rate Interest Determination Date"), as the Money Market
Yield (as defined below) on such date of the rate for commercial paper having
the Index Maturity specified above as published in H.15(519) under the heading
"Commercial Paper." In the event such rate is not published by 3:00 P.M., New
York City time, on the related Calculation Date, then the Commercial Paper
Rate shall be the Money Market Yield on such Commercial Paper Rate Interest
Determination Date of the rate for commercial paper having the Index Maturity
shown above as published in Composite Quotations under the heading "Commercial
Paper" (with an Index Maturity of one month or three months being deemed to be
equivalent to an Index Maturity of 30 days or 90 days, respectively). If by
3:00 P.M., New York City time, on the related Calculation Date such rate is not
yet published in either H.15(519) or Composite Quotations, then the Commercial
Paper Rate on such Commercial Paper Rate Interest Determination Date shall be
as calculated by the Calculation Agent and shall be the Money Market Yield of
the arithmetic mean of the offered rates at approximately 11:00 A.M., New York
City time, on such Commercial Paper Rate Interest Determination Date of three
leading dealers of commercial paper in The City of New York selected by the
Calculation Agent for commercial paper having the Index Maturity specified
above placed for an industrial issuer whose bond rating is "AA," or the
equivalent, from a nationally recognized securities rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the Commercial Paper Rate
determined on such Commercial Paper Rate Interest Determination Date shall be
the Commercial Paper Rate in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
-------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.
Eleventh District Cost of Funds Rate. If an Interest Rate Basis
for this Note is the Eleventh District Cost of Funds Rate, as indicated above,
the Eleventh District Cost of Funds Rate shall be determined on the applicable
Interest Determination Date (an "Eleventh District Cost of Funds Rate Interest
Determination Date"), and shall be the rate equal to the monthly weighted
average cost of funds for the calendar month preceding such Eleventh District
Cost of Funds Rate Interest Determination Date as set forth under the caption
"11th District" on Telerate Page 7175 as of 11:00 A.M., San Francisco time,
on such Eleventh District Cost of Funds Rate Interest Determination Date. If
such rate does not appear on Telerate Page 7175 on any related Eleventh
District Cost of Funds Rate Interest Determination Date, the Eleventh District
Cost of Funds Rate for such Eleventh District Cost of Funds Rate Interest
Determination Date shall be the monthly weighted average cost of funds paid by
member institutions of the Eleventh Federal Home Loan Bank District that was
most recently announced (the "Index") by the FHLB of San Francisco as such
cost of funds for the calendar month preceding the date of such announcement.
If the FHLB of San Francisco fails to announce such rate for the calendar
month next preceding such Eleventh District Cost of Funds Rate Interest
Determination Date, then the Eleventh District Cost of Funds Rate for such
Eleventh District Cost of Funds Rate Interest Determination Date shall be the
Eleventh District Cost of Funds Rate in effect on such Eleventh District Cost
of Funds Rate Interest Determination Date.
Determination of Federal Funds Rate. If an Interest Rate Basis
for this Note is the Federal Funds Rate, as indicated above, the Federal Funds
Rate shall be determined on the applicable Interest Determination Date (a
"Federal Funds Rate Interest Determination Date"), as the rate on that date
for Federal Funds as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not so published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on such Federal Funds Rate Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If by 3:00 P.M., New York City time, on the
related Calculation Date, such rate is not yet published in either H.15(519)
or Composite Quotations, then the Federal Funds Rate for such Federal Funds
Rate Interest Determination Date shall be calculated by the Calculation Agent
and shall be the arithmetic mean of the rates for the last transaction in
overnight United States dollar Federal funds arranged by three leading brokers
of Federal funds transactions in The City of New York selected by the
Calculation Agent prior to 9:00 A.M., New York City time on such Federal Funds
Rate Interest Determination Date; provided, however, that if the brokers
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the Federal Funds Rate determined on such Federal Funds Rate
Interest Determination Date shall be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
Determination of LIBOR. If an Interest Rate Basis for this Note
is LIBOR, as indicated above, LIBOR will be determined on the applicable
Interest Determination Date (a "LIBOR Interest Determination Date"), as
follows:
(a) (i) if "LIBOR Reuters" is specified above, the
arithmetic mean of the offered rates (unless the specified Designated
LIBOR Page (as defined below) by its terms provides only for a single
rate, in which case such single rate shall be used) for deposits in
United States dollars having the Index Maturity specified above,
commencing on the second London Business Day immediately following such
LIBOR Interest Determination Date, that appear on the Designated LIBOR
Page specified above as of 11:00 A.M. London time, on that LIBOR
Interest Determination Date, if at least two such offered rates appear
(unless, as aforesaid, only a single rate is required) on such Designated
LIBOR Page, or (ii) if "LIBOR Telerate" is specified above, the rate for
deposits in United States dollars having the Index Maturity specified
above commencing on the second London Business Day immediately following
that LIBOR Interest Determination Date that appears on the Designated
LIBOR Page specified above as of 11:00 A.M. London time, on that LIBOR
Interest Determination Date. If fewer than two offered rates appear, or
no rate appears, as applicable, LIBOR in respect of the related LIBOR
Interest Determination Date will be determined as if the parties had
specified the rate described in paragraph (b) below.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is
specified above, the display on the Reuters Monitor Money Rates Service for
the purpose of displaying the London interbank rates of major banks for United
States dollars, or (b) if "LIBOR Telerate" is specified above, the display on
the Dow Jones Telerate Service for the purpose of displaying the London
interbank rates of major banks for United States dollars. If neither LIBOR
Reuters nor LIBOR Telerate is specified above, LIBOR for United States dollars
will be determined as if LIBOR Telerate Page 3750 had been specified.
(b) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear on the Designated LIBOR Page as specified
above, the Calculation Agent shall request the principal London offices of
each of four major reference banks in the London interbank market, as selected
by the Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in United States dollars for the period of the Index
Maturity shown above, commencing on the second London Business Day immediately
following such LIBOR Interest Determination Date, to prime banks in the London
interbank market at approximately 11:00 A.M., London time, on such LIBOR
Interest Determination Date and in a principal amount that is representative
for a single transaction in such U.S. dollars in such market at such time. If
at least two such quotations are provided, LIBOR determined on such LIBOR
Interest Determination Date shall be the arithmetic mean of such quotations as
determined by the Calculation Agent. If fewer than two quotations are
provided, LIBOR determined on such LIBOR Interest Determination Date shall be
calculated by the Calculation Agent as the arithmetic mean of the rates quoted
at approximately 11:00 A.M., New York City time, on such LIBOR Interest
Determination Date by three major banks in The City of New York selected by
the Calculation Agent for loans in United States dollars to leading European
banks having the Index Maturity specified above and in a principal amount that
is representative for a single transaction in such U.S. dollars in such market
at such time; provided, however, that if the banks selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined on such LIBOR Interest Determination Date shall be LIBOR in effect
on such LIBOR Interest Determination Date.
Determination of Prime Rate. If an Interest Rate Basis for this
Note is the Prime Rate, as indicated above, the Prime Rate shall be determined
on the applicable Interest Determination Date (a "Prime Rate Interest
Determination Date") as the rate on such date as such rate is published in
H.15(519) under the heading "Bank Prime Loan." If such rate is not published
prior to 9:00 A.M., New York City time, on the related Calculation Date, then
the Prime Rate shall be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen USPRIME1 Page as
such bank's prime rate or base lending rate as in effect for that Prime Rate
Interest Determination Date. If fewer than four such rates but more than one
such rate appear on the Reuters Screen USPRIME1 Page for such Prime Rate
Interest Determination Date, the Prime Rate shall be the arithmetic mean of
the prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date by four major money center banks in The City of
New York selected by the Calculation Agent. If fewer than two such rates
appear on the Reuters Screen USPRIME1 Page, the Prime Rate will be determined
by the Calculation Agent on the basis of the rates furnished in The City of New
York by three substitute banks or trust companies organized and doing business
under the laws of the United States, or any State thereof, having total equity
capital of at least $500 million and being subject to supervision or
examination by Federal or state authority, selected by the Calculation Agent
to provide such rate or rates; provided, however, that if the banks or trust
companies selected as aforesaid are not quoting as mentioned in this sentence,
the Prime Rate for such Prime Rate Interest Determination Date will be the
Prime Rate as determined based on the last such rate published in H.15(519).
"Reuters Screen USPRIME1 Page" means the display designated as
page USPRIME1 on the Reuters Monitor Money Rates Service (or such other page
as may replace the USPRIME1 page on that service for the purpose of displaying
prime rates or base lending rates of major United States banks).
Determination of Treasury Rate. If an Interest Rate Basis for
this Note is the Treasury Rate, as specified above, the Treasury Rate shall be
determined on the applicable Interest Determination Date (a "Treasury Rate
Interest Determination Date") as the rate applicable to the most recent
auction of direct obligations of the United States ("Treasury Bills") having
the Index Maturity specified above, as such rate is published in H.15(519)
under the heading "Treasury Bills -- auction average (investment)" or, if not
so published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate (expressed as a bond equivalent on the basis of
a year of 365 or 366 days, as applicable, and applied on a daily basis) as
otherwise announced by the United States Department of the Treasury. In the
event that the results of the auction of Treasury Bills having the Index
Maturity specified above are not reported as provided by 3:00 P.M., New York
City time, on such Calculation Date, or if no such auction is held in a
particular week, then the Treasury Rate hereon shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such Treasury
Rate Interest Determination Date of three leading primary United States
government securities dealers as selected by the Calculation Agent for the
issue of Treasury Bills with a remaining maturity closest to the Index Maturity
specified above; provided, however, that if the dealers selected as aforesaid
by the Calculation Agent are not quoting as mentioned in this sentence, the
Treasury Rate will be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
Any provision contained herein with respect to the determination
of an Interest Rate Basis, the specification of Interest Rate Basis,
calculation of the Interest Rate applicable to this Note, its payment dates or
any other matter relating hereto may be modified as specified in an Addendum
relating hereto if so specified above.
Notwithstanding the foregoing, the interest rate hereon shall not
be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified above. The Calculation Agent shall calculate
the interest rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no event be higher
than the maximum rate permitted by New York law, as the same may be modified
by United States law, of general application.
At the request of the Holder hereof, the Calculation Agent shall
provide to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate which shall become effective as of the next
Interest Reset Date.
If an Event of Default with respect to the Notes shall occur and
be continuing, the principal of all the Notes may be declared due and payable
in the manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the 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
Securities of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the Holder of each outstanding
Security affected thereby, (i) extend the stated maturity of the principal 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 change the currency in which the principal thereof
(including any amount in respect of original issue discount) or interest
thereon is payable or reduce the amount of any original issue discount
security payable upon acceleration or provable in bankruptcy or impair the
right to institute suit for the enforcement of any payment on any Security
when due or (ii) reduce the aforesaid percentage in principal amount of
Securities of any series issued under such Indenture, the consent of the
Holders of which is required for any such modification. It is also provided
in the Indenture that, with respect to certain defaults or Events of Default
regarding the Securities of any series, prior to any declaration accelerating
the maturity of such Securities, the Holders of a majority in aggregate
principal amount Outstanding of the Securities of such series (or, in the case
of certain defaults or Events of Default, all or certain series of the
Securities) may on behalf of the Holders of all the Securities of such series
(or all or certain series of the Securities, as the case may be) waive any
such past default or Event or Default and its consequences. The preceding
sentence shall not, however, apply to a default in the payment of the
principal of or interest on any of the Securities. Any such consent or waiver
by the Holder of this Note (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and any Notes which may be issued in exchange or
substitution herefor or on registration of transfer hereof, irrespective of
whether or not any notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the time, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the registry
books of the Company, upon surrender of this Note for registration of transfer
at the office or agency of the Company maintained by the Company for such
purpose in the Borough of Manhattan, The City of New York duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder hereof or by its attorney
duly authorized in writing, and thereupon one or more new Notes of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by
the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed, manually or in facsimile, and an imprint or facsimile of its
corporate seal to be imprinted hereon.
[FACSIMILE OF SEAL]
SUNAMERICA INC.
By:
--------------------------
Name:
Title:
Attest:
By: _________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By: ______________________________
Authorized Officer
Dated: ___________________
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest
to the repayment date, to the undersigned, at
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its
Corporate Trust Office, or at such other place or places of which the Company
shall from time to time notify the Holder of this Note, not more than 60 nor
less than 30 days prior to an Optional Repayment Date, if any, shown on the
face of this Note, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be increments of $1,000) which
the Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the
portion not being repaid).
$__________
NOTICE: The signature on this
Date _____________________ Option to Elect Repayment must
correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatsoever.
Signature Guarantee:
____________________
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby
sell(s), assign(s) and transfer(s) unto
(insert Taxpayer Identification No.)
(Please print or typewrite name and address including postal zip code of
assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.
Dated: ________________
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or any
change whatsoever.
Signature Guarantee:
____________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM -- as tenants in common
UNIF GIFT MIN ACT -- ............Custodian............
(Cust) (Minor)
Under Uniform Gifts to Minors Act
................................. (State)
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above
list.
EXHIBIT 4.8
[FORM OF FLOATING RATE GLOBAL MEDIUM-TERM NOTE, SERIES 2]
Unless and until this certificate is exchanged in whole or in part
for Notes in definitive registered form, this Note may not be transferred
except as a whole by The Depository Trust Company, a New York corporation
("DTC"), to its nominee or by its nominee to DTC or another nominee of DTC or
by DTC or any such nominee to a successor Depositary or a nominee of such
successor Depositary. Any certificate issued in exchange herefor shall be
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment in respect hereof shall
be made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC).
REGISTERED CUSIP No. PRINCIPAL AMOUNT
No. FLR
$ ___________________
SUNAMERICA INC.
MEDIUM-TERM NOTE, SERIES 2
(Floating Rate)
INTEREST RATE ORIGINAL ISSUE STATED MATURITY
BASIS DATE DATE
INITIAL INTEREST INTEREST PAYMENT
INDEX MATURITY RATE PERIOD
INITIAL INTEREST INTEREST PAYMENT
SPREAD RESET DATE DATES
INTEREST RATE INTEREST RESET
SPREAD MULTIPLIER RESET PERIOD DATES
MAXIMUM INTEREST MINIMUM INTEREST INITIAL REDEMPTION
RATE RATE DATE
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE PERCENTAGE DATE(S)
INTEREST CALCULATION DAY COUNT CONVENTION
[ ] Regular Floating Rate [ ] Actual/360 for the
Note period
[ ] Floating Rate/Fixed from to
Rate [ ] Actual/Actual to the
Fixed Rate Commencement period
Date: from to
Fixed Interest Rate:
[ ] Inverse Floating Rate
Note
Fixed Interest Rate:
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
IF THE INTEREST RATE BASIS IS THE CMT RATE:
Designated CMT Telerate Designated CMT MATURITY
INDEX
Page: [ ] Page 7055
[ ] Page 7052
OTHER PROVISIONS:
SUNAMERICA INC., a Maryland corporation ("Issuer" or the
"Company," which terms include any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, the Principal Amount specified
above on the Stated Maturity Date specified above (except to the extent
redeemed or repaid prior to the Stated Maturity Date), and to pay interest
thereon, at a rate per annum equal to the Initial Interest Rate specified
above until the Initial Interest Reset Date specified above and thereafter
at a rate per annum determined in accordance with the provisions hereof and
any Addendum relating hereto depending upon the Interest Rate Basis or
Bases, if any, and such other terms specified above, until the principal
hereof is paid or duly made available for payment. Reference herein to
"this Note," "hereof," "herein" and comparable terms shall include an
Addendum hereto if an Addendum is specified above.
The Company will pay interest monthly, quarterly, semi-annually,
annually or such other period as specified above under "Interest Payment
Period," on each Interest Payment Date specified above, commencing on the
first Interest Payment Date specified above next succeeding the Original Issue
Date specified above, and on the Stated Maturity Date or any Redemption Date
or Optional Repayment Date (the date of each such Stated Maturity Date,
Redemption Date and Optional Repayment Date and the date on which principal or
an installment of principal is due and payable by declaration of acceleration
pursuant to the Indenture being referred to hereinafter as a "Maturity" with
respect to principal payable on such date); provided, however, that if the
Original Issue Date is between a Regular Record Date (as defined below) and
the next succeeding Interest Payment Date, interest payments will commence on
the second Interest Payment Date succeeding the Original Issue Date; and
provided, further, that if an Interest Payment Date (other than an Interest
Payment Date at Maturity) would fall on a day that is not a Business Day (as
defined below), such Interest Payment Date shall be the following day that is
a Business Day, except that in the case the Interest Rate Basis is LIBOR, as
indicated above, if such next Business Day falls in the next calendar month,
such Interest Payment Date shall be the next preceding day that is a Business
Day. Except as provided above, interest payments will be made on the Interest
Payment Dates shown above. Unless otherwise specified above, the "record
date" shall be the date 15 calendar days (whether or not a Business Day) prior
to the applicable Interest Payment Date. Interest on this Note will accrue
from and including the Original Issue Date specified above, at the rates
determined from time to time as specified herein, until the principal hereof
has been paid or made available for payment. If the Maturity falls on a day
which is not a Business Day as defined below, the payment due on such Maturity
will be paid on the next succeeding Business Day with the same force and
effect as if made on such Maturity and no interest shall accrue with respect
to such payment for the period from and after such Maturity. The interest 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
Note is registered at the close of business on the record date for such
Interest Payment Date. Any such interest which is payable, but not punctually
paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest"), shall forthwith cease to be payable to the registered
Holder on such record date, and may be paid to the Person in whose name this
Note is 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 Holder of this Note not less than 15 days preceding such
subsequent record date, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note will be made at
the office or agency of the Company maintained by the Company for such purpose
in the Borough of Manhattan, The City of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company, payment of interest due other than at Maturity may be made by
check mailed to the address of the Person entitled thereto as such address
shall appear in the registry books of the Company; and provided, further, that
the repayment of the principal of and interest on this Note on any Optional
Repayment Date(s), if any, indicated above shall be made upon satisfaction of
the provisions herein; and provided, further, that AT THE OPTION OF THE
COMPANY, the Holder of Notes with an aggregate principal amount of $10,000,000
or more will be entitled to receive payments of principal of and interest on
this Note by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received by the Trustee not less than 15 days
prior to the applicable payment date. Such wire instructions, upon receipt by
the Trustee, shall remain in effect until revoked by such Holder.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee under the Indenture, by the manual signature of
one of its authorized officers, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose. This Note is
one of a duly authorized series of Securities (hereinafter called the
"Securities") of the Company designated as its Medium-Term Notes, Series 2
(the "Notes"). The Notes are issued and to be issued under an Indenture dated
as of April 15, 1993, as amended (herein called the "Indenture") between the
Company and The First National Bank of Chicago, a national banking association
(the "Trustee," which term includes any successor Trustee with respect to the
Notes under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights
thereunder of the Company, the Trustee and the Holders of the Notes and the
terms upon which the Notes are to be authenticated and delivered. The terms
of individual Notes may vary with respect to interest rates or interest rate
formulas, issue dates, maturity, redemption, repayment, currency of payment
and otherwise.
Except as otherwise provided in the Indenture, this Note will be
issued in global form only registered in the name of the Depositary or its
nominee. This Note will not be issued in definitive form, except as otherwise
provided in the Indenture, and ownership of this Note shall be maintained in
book-entry form by the Depositary for the accounts of participating
organizations of the Depositary.
Unless otherwise provided above and in accordance with the provisions
herein, this Note is not subject to any sinking fund and is not redeemable or
repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on any
date on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed
prior to the Stated Maturity Date. On and after the Initial Redemption Date,
if any, this Note may be redeemed at any time in whole or from time to time in
part in increments of $1,000 (provided that any remaining principal hereof
shall be at least $1,000) at the option of the Company at the applicable
Redemption Price (as defined below), together with accrued interest hereon at
the applicable rate payable to the date of redemption (each such date, a
"Redemption Date"), on written notice given not more than 60 nor less than 30
days prior to the Redemption Date and in accordance with the provisions of the
Indenture. In the event of redemption of this Note in part only, a new Note
for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified above, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Note may be subject to repayment at the option of the Holder on
any Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity Date. On any
Optional Repayment Date, this Note shall be repayable in whole or in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $1,000) at the option of the Holder hereof at a repayment price, unless
otherwise specified above, equal to 100% of the principal amount to be repaid,
together with interest thereon payable to the date of repayment. For this
Note to be repaid in whole or in part at the option of the Holder hereof, this
Note must be received, with the form entitled "Option to Elect Repayment"
below duly completed, by the Trustee at its Corporate Trust Office, or such
other address of which the Company shall from time to time notify the Holders
of the Notes, not more than 60 nor less than 30 days prior to the related
Optional Repayment Date. Exercise of such repayment option by the Holder
hereof shall be irrevocable. With respect to Notes represented by global
securities, any option for repayment may be exercised by the applicable
participant that has an account with the Depositary, on behalf of the owners
of the beneficial interests in the Notes represented by such global securities,
by delivering a written notice substantially similar to the above-referenced
form, duly completed, to the Trustee at the place and within the period
described above. All such notices shall be executed by a duly authorized
officer of such participant (with signature guaranteed) and shall be
irrevocable.
The interest rate borne by this Note shall be determined as follows:
If this Note is designated as a Regular Floating Rate Note above,
then, except as described below, this Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis shown above (i)
plus or minus the applicable Spread, if any, and/or (ii) multiplied by the
applicable Spread Multiplier, if any, specified and applied in the manner
described above. Commencing on the Initial Interest Reset Date, the rate at
which interest on this Note is payable shall be reset as of each Interest
Reset Date specified above; provided, however, that the interest rate in
effect for the period from the Original Issue Date to the Initial Interest
Reset Date will be the Initial Interest Rate.
If this Note is designated as a Floating Rate/Fixed Rate Note above,
then, except as described below, this Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis shown above (i)
plus or minus the applicable Spread, if any, and/or (ii) multiplied by the
applicable Spread Multiplier, if any, specified and applied in the manner
described above. Commencing on the Initial Interest Reset Date, the rate at
which interest on this Note is payable shall be reset as of each Interest
Reset Date specified above; provided, however, that (i) the interest rate in
effect for the period from the Original Issue Date to the Initial Interest
Reset Date shall be the Initial Interest Rate; and (ii) the interest rate in
effect commencing on, and including, the Fixed Rate Commencement Date to
Maturity shall be the Fixed Interest Rate, if such a rate is specified above,
or if no such Fixed Interest Rate is so specified, the interest rate in effect
hereon on the day immediately preceding the Fixed Rate Commencement Date.
If this Note is designated as an Inverse Floating Rate Note above,
then, except as described below, this Note will bear interest equal to the
Fixed Interest Rate indicated above minus the rate determined by reference to
the Interest Rate Basis shown above (i) plus or minus the applicable Spread, if
any, and/or (ii) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described above. Commencing on the
Initial Interest Reset Date, the rate at which interest on this Note is
payable shall be reset as of each Interest Rate Reset Date specified above;
provided, however, that the interest rate in effect for the period from the
Original Issue Date to the Initial Interest Reset Date shall be the Initial
Interest Rate.
Notwithstanding the foregoing, if this Note is designated above as
having an Addendum attached, the Note shall bear interest in accordance with
the terms described in such Addendum.
Except as provided above, the interest rate in effect on each day
shall be (a) if such day is an Interest Reset Date, the interest rate
determined as of the Interest Determination Date (as defined below)
immediately preceding such Interest Reset Date or (b) if such day is not an
Interest Reset Date, the interest rate determined as of the Interest
Determination Date immediately preceding the next preceding Interest Reset
Date. The interest rate with respect to each Interest Rate Basis shall be
determined in accordance with the applicable provision below. If any Interest
Reset Date (which term includes the term Initial Interest Reset Date unless the
context otherwise requires) would otherwise be a day that is not a Business
Day, such Interest Reset Date shall be postponed to the next succeeding day
that is a Business Day, except that if an Interest Rate Basis specified on the
face hereof is LIBOR and such next Business Day falls in the next succeeding
calendar month, such Interest Reset Date shall be the next preceding Business
Day.
Unless otherwise specified above, interest payable on this Note on
any Interest Payment Date shall be the amount of interest accrued from and
including the next preceding Interest Payment Date in respect of which
interest has been paid (or from and including the Original Issue Date specified
above, if no interest has been paid), to but excluding the related Interest
Payment Date or maturity, as the case may be. Unless otherwise specified
above, accrued interest hereon shall be an amount calculated by multiplying
the face amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the period for which accrued interest is being calculated. Unless
otherwise specified above, the interest factor for each such day shall be
computed by dividing the interest rate applicable to such day by 360 if the
Day Count Convention specified above is "Actual/360" for the period specified
thereunder or by the actual number of days in the year if the Day Count
Convention specified above is "Actual/Actual" for the period specified
thereunder. The interest factor for Notes for which the interest rate is
calculated with reference to two or more Interest Rate Bases will be
calculated in each period in the same manner as if only one of the applicable
Interest Rate Bases applied as specified above.
Unless otherwise specified above, the "Interest Determination Date"
with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate will be the second Business Day
preceding each Interest Reset Date; the "Interest Determination Date" with
respect to LIBOR shall be the second London Business Day (as defined below)
preceding each Interest Reset Date; the "Interest Determination Date" with
respect to the Eleventh District Cost of Funds Rate shall be the last working
day of the month immediately preceding each Interest Reset Date on which the
Federal Home Loan Bank of San Francisco (the "FHLB of San Francisco")
publishes the Index (as defined below); the "Interest Determination Date" with
respect to the Treasury Rate will be the day in the week in which the related
Interest Reset Date falls on which day Treasury bills (as defined below)
normally would be auctioned (Treasury bills are normally sold at auction on
Monday of each week, unless that day is a legal holiday, in which case the
auction is normally held on the following Tuesday, except that such auction
may be held on the preceding Friday); provided, however, that if, as a result
of a legal holiday, an auction is held on the Friday of the week preceding the
related Interest Reset Date, the related Interest Determination Date shall be
such preceding Friday; and provided, further, that if an auction shall fall
on any Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day following such auction. If the interest rate of this Note
is determined with reference to two or more Interest Rate Bases, the Interest
Determination Date pertaining to this Note will be the latest Business Day
which is at least two Business Days prior to such Interest Reset Date on which
each Interest Rate Basis shall be determinable. Each Interest Rate Basis
shall be determined on such date, and the applicable interest rate shall take
effect on the related Interest Reset Date.
Unless otherwise specified above, the "Calculation Date" pertaining
to any Interest Determination Date will be the earlier of (i) the tenth
calendar day after such Interest Determination Date or, if such day is not a
Business Day, the next succeeding Business Day or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity, as the case may
be. All calculations on this Note shall be made by the Calculation Agent
specified above or such successor thereto as is duly appointed by the Company.
All percentages resulting from any calculation on this Note will be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all dollar amounts
used in or resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upward).
As used herein, "Business Day" means, unless otherwise specified
above, any day that in The City of New York is not a day on which banking
institutions are authorized or required by law or regulation to close and, if
the Interest Rate Basis shown above is LIBOR, is also a London Business Day.
As used herein, "London Business Day" means any day on which dealings
in deposits in U.S. dollars are transacted in the London interbank market.
Determination of CD Rate. If an Interest Rate Basis for this Note is
the CD Rate, as indicated above, the CD Rate shall be determined on the
applicable Interest Determination Date (a "CD Rate Interest Determination
Date"), as the rate on such date for negotiable certificates of deposit having
the Index Maturity specified above as published by the Board of Governors of
the Federal Reserve System in "Statistical Release H.15(519), Selected
Interest Rates" or any successor publication ("H.15(519)"), under the heading
"CDs (Secondary Market)", or, if not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on such CD Rate Interest
Determination Date for negotiable certificates of deposit of the Index
Maturity specified above as published by the Federal Reserve Bank of New York
in its daily statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" or any successor publication ("Composite Quotations")
under the heading "Certificates of Deposit." If such rate is not yet
published in either H.15(519) or the related Composite Quotations by 3:00 P.M.,
New York City time, on the Calculation Date, then the CD Rate on such CD Rate
Interest Determination Date will be calculated by the Calculation Agent and
will be the arithmetic mean of the secondary market offered rates as of 10:00
A.M., New York City time, on such CD Rate Interest Determination Date, of
three leading non-bank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent for
negotiable certificates of deposit of major United States money market banks
for negotiable certificates of deposit with a remaining maturity closest to
the Index Maturity designated above in an amount that is representative for a
single transaction in that market at that time; provided, however, that if the
dealers so selected as aforesaid by the Calculation Agent are not quoting as
set forth above, the CD Rate determined on such CD Rate Interest Determination
Date shall be the CD Rate in effect on such CD Rate Interest Determination
Date.
Determination of CMT Rate. If an Interest Rate Basis for this
Note is the CMT Rate, as indicated above, the CMT Rate shall be determined on
the applicable Interest Determination Date (a "CMT Rate Interest Determination
Date"), as the rate displayed on the Designated CMT Telerate Page under the
caption "... Treasury Constant Maturities...Federal Reserve Board Release
H.15...Mondays Approximately 3:45 P.M.," under the column for the Designated
CMT Maturity Index for (i) if the Designated CMT Telerate Page is 7055, the
rate on such CMT Rate Interest Determination Date and (ii) if the Designated
CMT Telerate Page is 7052, the week, or the month, as applicable, ended
immediately preceding the week in which the related CMT Rate Interest
Determination Date occurs. If such rate is no longer displayed on the
relevant page or is not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published or is not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for
the Designated CMT Maturity Index (or other United States Treasury rate for
the Designated CMT Maturity Index) for the CMT Rate Interest Determination
Date with respect to such Interest Reset Date as may then be published by
either the Board of Governors of the Federal Reserve System or the United
States Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in the relevant H.15(519). If such information is not provided
by 3:00 P.M., New York City time, on the related Calculation Date, then the
CMT Rate on the CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic
mean of the secondary market closing offer side prices as of approximately
3:30 P.M., New York City time, on such CMT Rate Interest Determination Date
reported, according to their written records, by three leading primary United
States government securities dealers (each, a "Reference Dealer") in The City
of New York selected by the Calculation Agent (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for the most
recently issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the Designated
CMT Maturity Index and a remaining term to maturity of not less than such
Designated CMT Maturity Index minus one year. If the Calculation Agent is
unable to obtain three such Treasury Note quotations, the CMT Rate on such CMT
Rate Interest Determination Date will be calculated by the Calculation Agent
and will be a yield to maturity based on the arithmetic mean of the secondary
market offer side prices as of approximately 3:30 P.M., New York City time, on
such CMT Rate Interest Determination Date of three Reference Dealers in The
City of New York (from five such Reference Dealers selected by the Calculation
Agent and eliminating the highest quotation (or, in the event of equality, one
of the highest) and the lowest quotation (or, in the event of equality, one of
the lowest)), for Treasury Notes with an original maturity of the number of
years that is the next highest to the Designated CMT Maturity Index and a
remaining term to maturity closest to the Designated CMT Maturity Index and in
an amount of at least $100 million. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided however,
that if fewer than three Reference Dealers so selected by the Calculation
Agent are quoting as mentioned herein, the CMT Rate determined as of such CMT
Rate Interest Determination Date will be the CMT Rate in effect on such CMT
Rate Interest Determination Date. If two Treasury Notes with an original
maturity as described in the second preceding sentence have remaining terms to
maturity equally close to the Designated CMT Maturity Index, the Calculation
Agent will obtain from five Reference Dealers quotations for the Treasury Note
with the shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service specified above (or any other page as may replace such
page on that service for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519)) for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519). If no such page is specified
above, the Designated CMT Telerate Page shall be 7052 for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified above with respect to which the CMT Rate will be calculated.
If no such maturity is specified above, the Designated CMT Maturity Index
shall be 2 years.
Determination of Commercial Paper Rate. If an Interest Rate Basis
for this Note is the Commercial Paper Rate, as indicated above, the Commercial
Paper Rate shall be determined on the applicable Interest Determination Date
(a "Commercial Paper Rate Interest Determination Date"), as the Money Market
Yield (as defined below) on such date of the rate for commercial paper having
the Index Maturity specified above as published in H.15(519) under the heading
"Commercial Paper." In the event such rate is not published by 3:00 P.M., New
York City time, on the related Calculation Date, then the Commercial Paper
Rate shall be the Money Market Yield on such Commercial Paper Rate Interest
Determination Date of the rate for commercial paper having the Index Maturity
shown above as published in Composite Quotations under the heading "Commercial
Paper" (with an Index Maturity of one month or three months being deemed to be
equivalent to an Index Maturity of 30 days or 90 days, respectively). If by
3:00 P.M., New York City time, on the related Calculation Date such rate is
not yet published in either H.15(519) or Composite Quotations, then the
Commercial Paper Rate on such Commercial Paper Rate Interest Determination
Date shall be as calculated by the Calculation Agent and shall be the Money
Market Yield of the arithmetic mean of the offered rates at approximately
11:00 A.M., New York City time, on such Commercial Paper Rate Interest
Determination Date of three leading dealers of commercial paper in The City of
New York selected by the Calculation Agent for commercial paper having the
Index Maturity specified above placed for an industrial issuer whose bond
rating is "AA," or the equivalent, from a nationally recognized securities
rating agency; provided, however, that if the dealers selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate determined on such Commercial Paper Rate Interest
Determination Date shall be the Commercial Paper Rate in effect on such
Commercial Paper Rate Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D X 360 X 100
-------------
360 - (D X M)
where "D" refers to the applicable per annum rate for commercial
paper quoted on a bank discount basis and expressed as a decimal and
"M" refers to the actual number of days in the interest period for
which interest is being calculated.
Eleventh District Cost of Funds Rate. If an Interest Rate Basis for
this Note is the Eleventh District Cost of Funds Rate, as indicated above, the
Eleventh District Cost of Funds Rate shall be determined on the applicable
Interest Determination Date (an "Eleventh District Cost of Funds Rate Interest
Determination Date"), and shall be the rate equal to the monthly weighted
average cost of funds for the calendar month preceding such Eleventh District
Cost of Funds Rate Interest Determination Date as set forth under the caption
"11th District" on Telerate Page 7175 as of 11:00 A.M., San Francisco time, on
such Eleventh District Cost of Funds Rate Interest Determination Date. If
such rate does not appear on Telerate Page 7175 on any related Eleventh
District Cost of Funds Rate Interest Determination Date, the Eleventh District
Cost of Funds Rate for such Eleventh District Cost of Funds Rate Interest
Determination Date shall be the monthly weighted average cost of funds paid by
member institutions of the Eleventh Federal Home Loan Bank District that was
most recently announced (the "Index") by the FHLB of San Francisco as such
cost of funds for the calendar month preceding the date of such announcement.
If the FHLB of San Francisco fails to announce such rate for the calendar
month next preceding such Eleventh District Cost of Funds Rate Interest
Determination Date, then the Eleventh District Cost of Funds Rate for such
Eleventh District Cost of Funds Rate Interest Determination Date shall be the
Eleventh District Cost of Funds Rate in effect on such Eleventh District Cost
of Funds Rate Interest Determination Date.
Determination of Federal Funds Rate. If an Interest Rate Basis for
this Note is the Federal Funds Rate, as indicated above, the Federal Funds
Rate shall be determined on the applicable Interest Determination Date (a
"Federal Funds Rate Interest Determination Date"), as the rate on that date for
Federal Funds as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not so published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on such Federal Funds Rate Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If by 3:00 P.M., New York City time, on the
related Calculation Date, such rate is not yet published in either H.15(519)
or Composite Quotations, then the Federal Funds Rate for such Federal Funds
Rate Interest Determination Date shall be calculated by the Calculation Agent
and shall be the arithmetic mean of the rates for the last transaction in
overnight United States dollar Federal funds arranged by three leading brokers
of Federal funds transactions in The City of New York selected by the
Calculation Agent prior to 9:00 A.M., New York City time on such Federal Funds
Rate Interest Determination Date; provided, however, that if the brokers
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the Federal Funds Rate determined on such Federal Funds Rate
Interest Determination Date shall be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
Determination of LIBOR. If an Interest Rate Basis for this Note is
LIBOR, as indicated above, LIBOR will be determined on the applicable Interest
Determination Date (a "LIBOR Interest Determination Date"), as follows:
(a)(i) if "LIBOR Reuters" is specified above, the arithmetic mean of
the offered rates (unless the specified Designated LIBOR Page (as defined
below) by its terms provides only for a single rate, in which case such single
rate shall be used) for deposits in United States dollars having the Index
Maturity specified above, commencing on the second London Business Day
immediately following such LIBOR Interest Determination Date, that appear on
the Designated LIBOR Page specified above as of 11:00 A.M. London time, on
that LIBOR Interest Determination Date, if at least two such offered rates
appear (unless, as aforesaid, only a single rate is required) on such
Designated LIBOR Page, or
(ii) if "LIBOR Telerate" is specified above, the rate for deposits in
United States dollars having the Index Maturity specified above commencing on
the second London Business Day immediately following that LIBOR Interest
Determination Date that appears on the Designated LIBOR Page specified above as
of 11:00 A.M. London time, on that LIBOR Interest Determination Date. If
fewer than two offered rates appear, or no rate appears, as applicable, LIBOR
in respect of the related LIBOR Interest Determination Date will be determined
as if the parties had specified the rate described in paragraph (b) below.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is
specified above, the display on the Reuters Monitor Money Rates Service for
the purpose of displaying the London interbank rates of major banks for United
States dollars, or (b) if "LIBOR Telerate" is specified above, the display on
the Dow Jones Telerate Service for the purpose of displaying the London
interbank rates of major banks for United States dollars. If neither LIBOR
Reuters nor LIBOR Telerate is specified above, LIBOR for United States dollars
will be determined as if LIBOR Telerate Page 3750 had been specified.
(b) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear on the Designated LIBOR Page as specified
above, the Calculation Agent shall request the principal London offices of
each of four major reference banks in the London interbank market, as selected
by the Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in United States dollars for the period of the Index
Maturity shown above, commencing on the second London Business Day immediately
following such LIBOR Interest Determination Date, to prime banks in the London
interbank market at approximately 11:00 A.M., London time, on such LIBOR
Interest Determination Date and in a principal amount that is representative
for a single transaction in such U.S. dollars in such market at such time.
If at least two such quotations are provided, LIBOR determined on such LIBOR
Interest Determination Date shall be the arithmetic mean of such quotations as
determined by the Calculation Agent. If fewer than two quotations are
provided, LIBOR determined on such LIBOR Interest Determination Date shall be
calculated by the Calculation Agent as the arithmetic mean of the rates quoted
at approximately 11:00 A.M., New York City time, on such LIBOR Interest
Determination Date by three major banks in The City of New York selected by the
Calculation Agent for loans in United States dollars to leading European banks
having the Index Maturity specified above and in a principal amount that is
representative for a single transaction in such U.S. dollars in such market at
such time; provided, however, that if the banks selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined on such LIBOR Interest Determination Date shall be LIBOR in effect
on such LIBOR Interest Determination Date.
Determination of Prime Rate. If an Interest Rate Basis for this Note
is the Prime Rate, as indicated above, the Prime Rate shall be determined on
the applicable Interest Determination Date (a "Prime Rate Interest
Determination Date") as the rate on such date as such rate is published in
H.15(519) under the heading "Bank Prime Loan." If such rate is not published
prior to 9:00 A.M., New York City time, on the related Calculation Date, then
the Prime Rate shall be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen USPRIME1 Page as
such bank's prime rate or base lending rate as in effect for that Prime Rate
Interest Determination Date. If fewer than four such rates but more than one
such rate appear on the Reuters Screen USPRIME1 Page for such Prime Rate
Interest Determination Date, the Prime Rate shall be the arithmetic mean of
the prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date by four major money center banks in The City of
New York selected by the Calculation Agent. If fewer than two such rates
appear on the Reuters Screen USPRIME1 Page, the Prime Rate will be determined
by the Calculation Agent on the basis of the rates furnished in The City of
New York by three substitute banks or trust companies organized and doing
business under the laws of the United States, or any State thereof, having
total equity capital of at least $500 million and being subject to supervision
or examination by Federal or state authority, selected by the Calculation
Agent to provide such rate or rates; provided, however, that if the banks or
trust companies selected as aforesaid are not quoting as mentioned in this
sentence, the Prime Rate for such Prime Rate Interest Determination Date will
be the Prime Rate as determined based on the last such rate published in
H.15(519).
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rates Service (or such other page as
may replace the USPRIME1 page on that service for the purpose of displaying
prime rates or base lending rates of major United States banks).
Determination of Treasury Rate. If an Interest Rate Basis for this
Note is the Treasury Rate, as specified above, the Treasury Rate shall be
determined on the applicable Interest Determination Date (a "Treasury Rate
Interest Determination Date") as the rate applicable to the most recent
auction of direct obligations of the United States ("Treasury Bills") having
the Index Maturity specified above, as such rate is published in H.15(519)
under the heading "Treasury Bills -- auction average (investment)" or, if not
so published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate (expressed as a bond equivalent on the basis of
a year of 365 or 366 days, as applicable, and applied on a daily basis) as
otherwise announced by the United States Department of the Treasury. In the
event that the results of the auction of Treasury Bills having the Index
Maturity specified above are not reported as provided by 3:00 P.M., New York
City time, on such Calculation Date, or if no such auction is held in a
particular week, then the Treasury Rate hereon shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such Treasury
Rate Interest Determination Date of three leading primary United States
government securities dealers as selected by the Calculation Agent for the
issue of Treasury Bills with a remaining maturity closest to the Index
Maturity specified above; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate will be the Treasury Rate in effect on such
Treasury Rate Interest Determination Date.
Any provision contained herein with respect to the determination of
an Interest Rate Basis, the specification of Interest Rate Basis, calculation
of the Interest Rate applicable to this Note, its payment dates or any other
matter relating hereto may be modified as specified in an Addendum relating
hereto if so specified above.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified above. The Calculation Agent shall calculate
the interest rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no event be higher
than the maximum rate permitted by New York law, as the same may be modified
by United States law, of general application.
At the request of the Holder hereof, the Calculation Agent shall
provide to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate which shall become effective as of the next
Interest Reset Date.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the 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
Securities of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the Holder of each outstanding Security
affected thereby, (i) extend the stated maturity of the principal 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 change the currency in which the principal thereof
(including any amount in respect of original issue discount) or interest
thereon is payable or reduce the amount of any original issue discount
security payable upon acceleration or provable in bankruptcy or impair the
right to institute suit for the enforcement of any payment on any Security
when due or (ii) reduce the aforesaid percentage in principal amount of
Securities of any series issued under such Indenture, the consent of the
Holders of which is required for any such modification. It is also provided
in the Indenture that, with respect to certain defaults or Events of Default
regarding the Securities of any series, prior to any declaration accelerating
the maturity of such Securities, the Holders of a majority in aggregate
principal amount Outstanding of the Securities of such series (or, in the case
of certain defaults or Events of Default, all or certain series of the
Securities) may on behalf of the Holders of all the Securities of such series
(or all or certain series of the Securities, as the case may be) waive any
such past default or Event or Default and its consequences. The preceding
sentence shall not, however, apply to a default in the payment of the
principal of or interest on any of the Securities. Any such consent or waiver
by the Holder of this Note (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and any Notes which may be issued in exchange or
substitution herefor or on registration of transfer hereof, irrespective of
whether or not any notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the registry
books of the Company, upon surrender of this Note for registration of transfer
at the office or agency of the Company maintained by the Company for such
purpose in the Borough of Manhattan, The City of New York duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder hereof or by its attorney
duly authorized in writing, and thereupon one or more new Notes of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection
therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its
corporate seal to be imprinted hereon.
[FACSIMILE OF SEAL] SUNAMERICA INC.
By:
---------------------------
Name:
Title:
Attest:
By:
-------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By:
-------------------------
Authorized Officer
Dated:
----------------------
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest
to the repayment date, to the undersigned, at
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office, or at such other place or places of which the Company shall from
time to time notify the Holder of this Note, not more than 60 nor less than 30
days prior to an Optional Repayment Date, if any, shown on the face of this
Note, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be increments of $1,000) which
the Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the
portion not being repaid).
$
---------------------------------------
Date: NOTICE: The signature on this Option to
Elect Repayment must correspond with the name
as written upon the face of this Note in every
particular, without alteration or enlargement
or any change whatsoever.
Signature Guarantee:
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
(insert Taxpayer Identification No.)
(Please print or typewrite name and address including postal zip code of
assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.
Dated: NOTICE: The signature of the registered
Holder to this assignment must correspond
with the name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or any
change whatsoever.
Signature Guarantee:
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM -- as tenants in common
UNIF GIFT MIN ACT -- .............Custodian..................
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
EXHIBIT 5.1
[LETTERHEAD OF PIPER & MARBURY]
October 19, 1995
SunAmerica Inc.
1 SunAmerica Inc.
Century City
Los Angeles, California 90067-6022
Ladies and Gentlemen:
We have acted as Maryland counsel to SunAmerica Inc. (the
"Corporation") in connection with its Registration Statement on Form S-3
(Registration No. 33-62405) filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended, relating to
the issuance from time to time of up to U.S. $300,000,000 aggregate initial
offering price (or its equivalent, based upon the applicable exchange rate at
the time of issuance) of its Medium Term Notes, Series 2 (the "Notes") to be
issued pursuant to the Senior Indenture dated as of April 15, 1993 between the
Corporation and The First National Bank of Chicago, as Trustee as supplemented
by the Supplemental Indenture dated as of June 28, 1993 (as so supplemented,
the "Indenture"). In that capacity, we have reviewed the Charter and By-Laws
of the Corporation, the Indenture, the proceedings of the Board of Directors
and the Pricing committee of the Board of Directors of the Corporation
relating to the issuance by the Corporation of the Notes, and such other
documents, instruments and matters of law as we have deemed necessary to the
rendering of the opinion expressed below.
Based on the foregoing, we are of the opinion and advise you
that the issuance of the Notes by the Corporation under the Indenture has been
duly and validly authorized by the Corporation.
We hereby consent to the filing of this opinion as Exhibit 5 to
the Registration Statement and to the reference to our firm in the
Registration Statement, the related Prospectus dated September 29, 1995 and
the Prospectus Supplement dated October 19, 1995 relating to the Notes. In
giving our consent, we do not thereby admit that we are in 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,
/s/ Piper & Marbury
EXHIBIT 5.2
[LETTERHEAD OF DAVIS POLK & WARDWELL]
October 19, 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"), in connection with the issuance from time
to time of up to $300,000,000 aggregate initial offering price (or its
equivalent, based upon the applicable exchange rate at the time of issuance,
in such foreign or composite currencies as SunAmerica shall designate at the
time of issuance) of its Medium Term Notes, Series 2 (the "Notes") to be
issued pursuant to the Senior Indenture dated as of April 15, 1993, as
supplemented by the Supplemental Indenture dated as of June 28, 1993 (as so
supplemented, the "Indenture") between SunAmerica and The First National Bank
of Chicago, as trustee (the "Trustee"). The Notes have been registered under
the Securities Act of 1933, as amended (the "Act"), under a Registration
Statement on Form S-3 (Registration No. 33-62405) as amended (the
"Registration Statement"), and are being offered for sale pursuant to a
Prospectus Supplement dated October 19, 1995 (the "Prospectus Supplement") to
the Prospectus dated September 29, 1995, included in the Registration
Statement, relating to senior and subordinated debt securities, preferred
stock and common stock of SunAmerica and warrants to purchase the foregoing.
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, assuming
that the series of Notes has been duly authorized, when the terms of a
particular Note and its issuance and sale have been duly established in
conformity with the Indenture, and assuming that such Note has been duly
executed and authenticated in accordance with the provisions of the Indenture
and delivered and paid for by the purchasers thereof, such Note will
constitute a valid and binding obligation of SunAmerica, enforceable in
accordance with its 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).
The foregoing opinion does not address any application of the
Commodity Exchange Act, as amended, or the rules, regulations or
interpretations of the Commodity Futures Trading Commission to Notes the
payments of principal, premium, if any, or interest on which will be
determined by reference to one or more currency exchange rates, commodity
prices, equity indices or other factors. In addition, for purposes of the
foregoing opinion we have assumed that (a) the Notes will conform to the forms
attached to the certificate delivered today executed by the Secretary of the
Company and will be appropriately completed and (b) none of the terms of the
Notes not contained in the forms examined by us will violate any applicable
law or be unenforceable. In addition, the foregoing opinion is based upon
facts as we understand them to exist on the date hereof and the law which is
applicable on the date hereof.
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 caption
"Legal Matters" in the Prospectus Supplement. The issuance of such consent
does not concede that we are an "expert" for the purposes of the Securities
Act of 1933.
Very truly yours,
/s/ Davis Polk & Wardwell
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Davis Polk & Wardwell
