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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 31, 1996
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 (A) the issuance
by SunAmerica Inc. (the "Company") pursuant to the Company's Registration
Statement on Form S-3 (File No. 333-14201) of (i) 11,500,000 Premium Equity
Redemption Cumulative Security Units, 8 1/2% PERCS Units (the "PERCS Units"),
(ii) $375,000,000 principal amount of 6.20% Notes due October 31, 1999 (the
"Series 1 Notes") and (iii) $56,250,000 principal amount of 6.20% Notes due
October 31, 1999, Series 2 (the "Series 2 Notes") and (B) the execution and
delivery of an indenture supplement to the Junior Subordinated Indenture dated
March 15, 1995 between the Company and The First National Bank of Chicago as
Trustee.
ITEM 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
EXHIBITS
Exhibit 1.1 - Underwriting Agreement dated October 31, 1996 among
the Company and Morgan Stanley & Co. Incorporated,
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Goldman, Sachs & Co. and Smith Barney Inc., as
representatives of the Underwriters named therein,
relating to the PERCS Units
Exhibit 1.2 - First Amendment to the Underwriting Agreement filed
as Exhibit 1.1
Exhibit 1.3 - Underwriting Agreement dated October 31, 1996 among
the Company and Goldman, Sachs & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, J.P.
Morgan Securities Inc. and Morgan Stanley & Co.
Incorporated relating to the Series 1 Notes.
Exhibit 1.4 - Underwriting Agreement dated November 4, 1996 among
the Company and Goldman, Sachs & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, J.P.
Morgan Securities Inc. and Morgan Stanley & Co.
Incorporated relating to the Series 2 Notes
Exhibit 4.1 - Form of Series 1 Note
Exhibit 4.2 - Form of Series 2 Note
Exhibit 4.3 - Purchase Contract Agreement dated November 6, 1996
between the Company and The Bank of New York, as
Purchase Contract Agent (including Form of Security
Certificate)
Exhibit 4.4 - Pledge Agreement dated November 6, 1996 among the
Company, The First National Bank of Chicago, as
Collateral Agent, and The Bank of New York, as
Purchase Contract Agent
Exhibit 4.5 - Prepaid Securities Indenture dated November 1, 1996
between the Company and The Bank of New York, as
Trustee
Exhibit 4.6 - Supplemental Indenture dated November 6, 1996 to
the Prepaid Securities Indenture (including Form of
Certificate for the Prepaid Securities)
Exhibit 4.7 - Supplemental Indenture dated October 28, 1996 to
the Senior Indenture dated April 15, 1993, as
amended by the indenture supplement dated June 28,
1993, between the Company and The First National
Bank of Chicago, as Trustee
Exhibit 4.8 - Supplemental Indenture dated October 28, 1996 to
the Junior Subordinated Indenture dated March 15,
1995 between the Company and The First National Bank
of Chicago, as Trustee.
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.
Date: October 31, 1996
By: /s/ Susan L. Harris
Susan L. Harris
Senior Vice President and
Secretary
EXHIBIT 1.1
SunAmerica Inc.
8.5% Premium Equity Redemption Cumulative
Security Units - PERCS Units
(Stated Amount $37.50 Per Security)
UNDERWRITING AGREEMENT
October 31, 1996
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Goldman, Sachs & Co.
Smith Barney Inc.
As Representatives
(the "Representatives") of
the several Underwriters
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
SunAmerica Inc., a Maryland corporation (the "Company") confirms
its agreement to sell, subject to the terms and conditions stated herein, to
the several Underwriters named in Schedule I hereto (the "Underwriters"), and
the Underwriters, subject to the terms and conditions stated herein, have
agreed to purchase from the Company, 10,000,000 8.5% Premium Equity Redemption
Cumulative Security Units - PERCS Units (the "Firm Securities") of the
Company. Each Security will consist of (a) a stock purchase contract
("Purchase Contract") under which (i) the holder will purchase from the
Company on the Final Settlement Date or an earlier Acceleration Date, for an
amount equal to the Stated Amount, initially one share of Common Stock of the
Company, subject to adjustment under certain circumstances, if such purchase
occurs on the Final Settlement Date or Mandatory Acceleration Date, or such
lesser number of shares of Common Stock as may be payable if such purchase
occurs on a Company Acceleration Date and (ii) the Company will pay the holder
the Contract Fees, and (b) 7.5 % United States Treasury Notes ("Treasury
Notes") having a principal amount equal to $37.50 per Security and maturing on
the Final Settlement Date. In connection therewith, the Underwriters propose,
subject to the terms and conditions stated herein, to purchase and Pledge to
The First National Bank of Chicago, as collateral agent for the Company (the
"Collateral Agent") Treasury Notes bearing interest at the rate of 7.5% per
annum and maturing on October 31, 1999, having an aggregate principal amount
of $375,000,000. The Company proposes to grant the Underwriters an option to
purchase, subject to the terms and conditions stated herein, up to 1,500,000
additional 8.5% Premium Equity Redemption Cumulative Security Units - PERCS
Units (the "Optional Securities") and, in the event any such Optional
Securities are purchased, the Underwriters propose to purchase and Pledge to
the Collateral Agent the additional Treasury Notes (having a principal amount
equal to the Stated Amount times the number of Optional Securities to be
purchased by the Underwriters upon the exercise of such option, and bearing an
identical interest rate and maturity date) underlying such Optional
Securities. The Firm Securities and any Optional Securities are herein called
the "Securities." Capitalized terms used herein without definition shall be
used as defined in the Purchase Contract Agreement to be dated as of the First
Date of Delivery (the "Purchase Contract Agreement"), between the Company and
The Bank of New York, as Purchase Contract Agent (the "Agent").
SunAmerica Capital Trust III, SunAmerica Capital Trust IV,
SunAmerica Capital Trust V and SunAmerica Capital Trust VI (collectively, the
"SunAmerica Trusts") and the Company have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(Nos. 333-14201, 333-14201-01, 333-14201-02, 333-14201-03 and 333-14201-04)
and pre-effective Amendment Nos. 1 and 2 thereto, including a prospectus and
prospectus supplement, covering the registration of securities of the Company
and the SunAmerica Trusts (including the Securities and the Purchase Contracts
and shares of Common Stock underlying the Purchase Contracts and certain
prepaid stock purchase contracts of the Company (the "Prepaid Securities") to
be issued pursuant to a Prepaid Securities Indenture to be dated as of the
First Time of Delivery, as amended by a Supplemental Indenture to be dated as
of November 6, 1996 specifically relating to the Prepaid Securities (as so
amended, the "Prepaid Securities Indenture") between the Company and The Bank
of New York, as trustee), 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 Commission under the 1933 Act
(the "1933 Act Regulations"). Such registration statement, as so amended, has
been declared effective by the Commission. Such registration statement, as
so amended, including the exhibits thereto and the information, if any, deemed
to be a part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the
"Rule 430A Information") is referred to herein as the "Registration Statement;"
and the final prospectus and the prospectus supplement relating to the
offering of the Securities, in the form first furnished to the Underwriters by
the Company for confirming sales of the Securities, are collectively referred
to herein as the "Prospectus;" provided, however, that all references to the
"Registration Statement" and the "Prospectus" shall be deemed to include all
documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to the execution of
this Agreement; provided, further, that if the Company files a registration
statement with the Commission pursuant to Section 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then after such
filing, all references to "Registration Statement" shall be deemed to include
the Rule 462(b) Registration Statement. As used herein, the term "preliminary
prospectus" shall be deemed to refer to the preliminary prospectus supplement
specifically relating to the Securities and the prospectus used before the
registration statement became effective.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
1. Representations and Warranties. (a) The Company
represents and warrants to each of the Underwriters as follows:
(i) The Registration Statement (including the most
recent post-effective amendment thereto, if any) has been declared
effective by the Commission; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(ii) (a) Each document filed or to be filed
pursuant to the 1934 Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material
respects with the 1934 Act and the applicable rules and regulations of
the Commission thereunder, (b) each part of the Registration
Statement, when such part became effective, did not contain, and
each such part, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Registration
Statement, since the later of the date it became effective and the
date of the most recent post-effective amendment, if any, will not
fail to reflect any facts or events which individually or in the
aggregate represent a fundamental change in the information set
forth in the Registration Statement as of such date, (c) the
Registration Statement and the Prospectus comply, and, as amended
or supplemented, if applicable, will comply in all material
respects with the 1933 Act and the applicable Regulations of the
Commission thereunder and 1933 Act (d) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, except that the representations and warranties set
forth in this Section 1(ii) do not apply to (A) statements or
omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the
Company in writing by the Representatives expressly for use therein
or (B) to that part of the Registration Statement that constitutes
the Statement of Eligibility and qualification (Form T-1) under the
Trust Indenture Act of 1939 as amended (the "Trust Indenture Act"),
of the Trustees thereunder.
(iii) This Agreement and the transactions
contemplated hereby have been duly authorized, and this Agreement has
been duly executed and delivered by the Company.
(iv) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Maryland, with corporate power and authority to own,
lease and operate its properties and to conduct its business as
presently conducted and as described in the Registration Statement and
Prospectus; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not have
a material adverse effect on the condition, financial or otherwise, or
the earnings or business affairs of the Company and its subsidiaries,
considered as one enterprise.
(v) Each of SunAmerica Life Insurance Company,
Anchor National Life Insurance Company, Resources Trust Company and
Ford Life Insurance Company (together, the "Subsidiaries") has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as
described in the Registration Statement and Prospectus, and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs
of the Company and its subsidiaries, considered as one enterprise; and
all of the issued and outstanding capital stock of each Subsidiary has
been duly authorized and validly issued, is fully paid and
nonassessable and is owned (except for directors qualifying shares)
directly or through subsidiaries, by the Company, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(vi) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Registration Statement
and Prospectus (except for subsequent issuances, if any, pursuant to
reservations, stock option agreements, employee benefit plans or the
exercise of convertible securities which may be referred to in the
Registration Statement and Prospectus); all of the issued and
outstanding shares of capital stock have been duly authorized and
validly issued and are fully paid, nonassessable and not subject to
any preemptive or similar rights.
(vii) None of the Company nor any of the
Subsidiaries is in violation of its respective charter or bylaws, as
applicable, or in default in the performance of any material
obligation, agreement, covenant or condition contained in any material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of the Subsidiaries is a party
or by which any of them may be bound, or to which any of the property
or assets of the Company or of any of the Subsidiaries is subject, or
in violation of any applicable law, administrative regulation or
administrative or court order or decree, which violation or default
would, singly or in the aggregate, have a material adverse effect on
the condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries, considered as one
enterprise; and the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Purchase Contracts, the Purchase Contract Agreement, the Pledge
Agreement to be dated as of the First Time of Delivery among the
Company, The First National Bank of Chicago, as collateral agent for
the Company, and the Agent (the "Pledge Agreement"), and the Prepaid
Securities Indenture and the issuance and sale of the Securities, the
issuance of the Prepaid Securities and the issuance and sale of the
Common Stock upon settlement of the Securities and the Prepaid
Securities, will not conflict with or constitute a breach of, or a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of the Subsidiaries pursuant to, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of the Subsidiaries is a party or by which any of them
may be bound, or to which any of the property or assets of the Company
or any of the Subsidiaries is subject, except for a conflict, breach,
default, lien, charge or encumbrance which would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings or business affairs of the Company and its subsidiaries
considered as one enterprise, nor will such action result in any
violation of the provisions of the articles of incorporation or bylaws
of the Company or any of the Subsidiaries or any applicable law,
administrative regulation or administrative or court decree 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 Purchase
Contracts, the Purchase Contract Agreement, the Pledge Agreement and
the Prepaid Securities Indenture or the issuance and sale of the
Securities, the issuance of the Prepaid Securities or the issuance and
sale of the Common Stock upon settlement of the Securities and the
Prepaid Securities, except such as may be required by the securities
or Blue Sky laws or insurance securities laws of the various states in
connection with the offer and sale of the Securities or such as have
been obtained.
(viii) There are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened to
which the Company or any of its subsidiaries is a party or to which
any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or which are
reasonably likely to result in any 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, or which would be reasonably likely to materially and
adversely affect a material portion of the properties or assets
thereof or which is reasonably likely to materially and adversely
affect the consummation of this Agreement, the Purchase Contracts, the
Purchase Contract Agreements or the Pledge Agreement or the
transactions contemplated hereby or thereby; 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; and there are no
contracts or documents that are required to be filed as exhibits to
the Registration Statement, by the 1933 Act, the 1933 Act Regulations,
the 1934 Act or the 1934 Act Regulations thereunder, that have not
been filed as required, except that by the First Time of Delivery (as
defined herein) the Company will file on Form 8-K this Agreement and
certain other agreements relating to the Securities and the
transactions contemplated hereby.
(ix) The accountants who certified the financial
statements and supporting schedules included or incorporated by
reference in the Registration Statement and Prospectus are independent
public accountants with respect to the Company and the subsidiaries of
the Company as required by the 1933 Act and the 1933 Act Regulations
promulgated thereunder.
(x) The financial statements of the Company
included or incorporated by reference in the Registration Statement or
Prospectus present fairly the financial position of the Company and
the consolidated subsidiaries of the Company as of the dates indicated
and the results of their operations for the periods specified; except
as otherwise stated in the Registration Statement and Prospectus, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; the
ratios of earnings to fixed charges and earnings to combined fixed
charges (including preferred stock dividends) included in the
Registration Statement or Prospectus have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission; and
the supporting schedules included or incorporated by reference in the
Registration Statement or Prospectus present fairly the information
required to be included therein.
(xi) Since the respective dates as of which
information is given in the Registration Statement and 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 its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (b) there have been no transactions
entered into by the Company or any of its subsidiaries which are
material to the Company and its subsidiaries, considered as one
enterprise, other than those entered into in the ordinary course of
business and (c) except for regular quarterly dividends on Common
Stock of the Company, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock.
(xii) The Company and the Subsidiaries possess such
certificates, authorizations or permits issued by the appropriate
state or federal regulatory agencies or bodies as are necessary to
conduct the business as now conducted by them and as described in the
Registration Statement or Prospectus, except where the failure to so
possess such certificates, authorizations or permits would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings or business affairs of the Company and its subsidiaries,
considered as one enterprise; 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,
considered as one enterprise.
(xiii) There are no holders of securities of the
Company with currently exercisable registration rights to have any
securities registered as part of the Registration Statement or
included in the offering contemplated by this Agreement.
(xiv) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(xv) The Securities, including the Purchase
Contracts constituting a part of the Securities, conform in all
material respects to all statements relating to the Securities
contained in the Prospectus and the Registration Statement and have
been duly authorized by the Company and at the Time of Delivery will
have been duly executed and delivered by the Company and constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except that the Treasury Notes
constituting part of the Securities are obligations of the United
States Government and not of the Company, and except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability (regardless
of whether considered in a proceeding at law or in equity).
(xvi) The shares (the "Shares") of Common Stock to
be issued and sold by the Company pursuant to the Purchase Contracts
or the Prepaid Securities upon settlement thereof, have been duly and
validly authorized and reserved for issuance; such Shares, when issued
and delivered in accordance with the provisions of (a) the Purchase
Contract Agreement and the Pledge Agreement or (b) the Prepaid
Securities Indenture, will be duly authorized, validly issued and
fully paid and nonassessable and will conform in all material respects
to the descriptions of the Common Stock contained in the Prospectus
and the Registration Statement; and the issuance of such Shares are
not subject to preemptive or other rights to subscribe for purchase of
such Common Stock.
(xvii) The Prepaid Securities have been duly and
validly authorized by the Company for issuance; such Prepaid
Securities, when issued, executed, authenticated and delivered in
accordance with the provisions of the Purchase Contract Agreement, the
Pledge Agreement and the Prepaid Securities Indenture will be valid
and binding agreements of the Company, enforceable in accordance with
their terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium and other similar laws now or hereafter in effect relating
to or affecting creditors' rights generally and (b) the availability
of equitable remedies may be limited by equitable principles of
general applicability (regardless of whether considered in a
proceeding at law or in equity). The Prepaid Securities Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended.
(xviii) The Pledge Agreement, the Purchase Contract
Agreement, and the Prepaid Securities Indenture have been duly
authorized, and at the Time of Delivery will have been duly executed
and delivered by the Company, and, as of the Time of Delivery,
assuming due authorization, execution and delivery by parties other
than the Company thereunder, the Pledge Agreement, the Purchase
Contract Agreement and the Prepaid Securities Indenture will be
valid and binding agreements of the Company, enforceable in
accordance with their terms except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability
(regardless of whether considered in a proceeding at law or in
equity). The Pledge Agreement, the Purchase Contract Agreement and
the Prepaid Securities Indenture will conform in all material
respects to the descriptions thereof contained in the Prospectus
and the Registration Statement.
(xix) No "forward looking statement" (as defined in
Rule 175 under the Act) contained in the Registration Statement, any
Preliminary Prospectus or the Prospectus was made or reaffirmed
without a reasonable basis or was disclosed other than in good faith.
(xx) The Company recognizes and acknowledges for
all purposes of this Agreement that the only information relating to
any Underwriter furnished to the Company in writing by the
Underwriters expressly for use in the Registration Statement or the
Prospectus consists of the last paragraph on the cover page of the
Prospectus Supplement, and the names of the Underwriters, the second
paragraph and the last paragraph under the caption "Underwriters" in
the Prospectus Supplement.
2. Public Offering. The Company is advised by the
Representatives that the Underwriters propose to make a public offering of
their respective portions of the Securities as soon after this Agreement has
been entered into as in the Representatives' judgment is advisable. The terms
of the public offering of the Securities are set forth in the Prospectus.
3. Purchase and Sale. Subject to the terms and conditions
herein set forth, (a) the Company agrees to sell to the Underwriters, and each
of the Underwriters, severally and not jointly, agrees to purchase, the Firm
Securities set forth opposite the name of such Underwriter in Schedule I
hereto and (b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Securities, the Company agrees to
sell, and each of the Underwriters, severally and not jointly, agrees to
purchase, that number of additional Optional Securities as to which such
election has been exercised (to be adjusted by you to eliminate fractional
Securities) determined by multiplying such number of additional Securities by
a fraction, the numerator of which is the maximum number of Optional
Securities set forth opposite the name of such Underwriter in Schedule I
hereto and the denominator of which is the maximum number of Optional
Securities set forth in total opposite the names of all such Underwriters in
Schedule I hereto.
The Company hereby grants to the Underwriters the right to
purchase at their election up to 1,500,000 additional Securities, for the sole
purpose of covering overallotments in the sale by such Underwriters of Firm
Securities. Any such election to purchase such Optional Securities may be
exercised only by written notice from you to the Company, given within a
period of 30 calendar days after the date of this Agreement and setting forth
the aggregate number of such Optional Securities to be purchased and the date
on which the Optional Securities are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
The Underwriters agree to purchase at the direction of the
Company the Treasury Notes underlying the Securities to be purchased by the
Underwriters. The Treasury Notes will be pledged to the Collateral Agent to
secure the holders' obligations to purchase Common Stock under the Purchase
Contracts. Such Pledge shall be effected by the transfer to the Collateral
Agent by Federal Reserve Bank-Wire of the Treasury Notes to be Pledged at the
appropriate Time of Delivery (as defined below) in accordance with the Pledge
Agreement.
4. Purchase and Delivery. Certificates in definitive or
temporary form for the Securities to be purchased by the Underwriters
hereunder, and in such denominations and registered in such names as Morgan
Stanley & Co. Incorporated ("Morgan Stanley") may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to you for the account of such Underwriter, against the
delivery to the Collateral Agent of the Treasury Notes relating to such
Securities by such Underwriter or on its behalf. At such same time the
Company will pay to you Underwriters' commissions in the amount of $1.03 per
Security plus $1.6808722 per Security, resulting in a net payment of
$2.7108722 per Security, plus, in the case of Optional Securities, any accrued
interest from the First Time of Delivery to the Second Time of Delivery, in
same-day funds, all at the office of Morgan Stanley, 1585 Broadway, New York,
New York 10036. The time and date of such delivery and payment shall be, with
respect to the Firm Securities, 9:30 a.m., New York time, on November 6, 1996,
or such other time and date as you and the Company may agree upon in writing,
and, with respect to the Optional Securities, 9:30 a.m., New York time, on the
date specified by you in the written notice given by you of the Underwriters'
election to purchase additional Optional Securities, or such other time and
date as you and the Company may agree upon in writing. Such time and date for
delivery of the Firm Securities is herein called the "First Time of Delivery,"
such time and date for delivery of the Optional Securities, if not the First
Time of Delivery, is herein called the "Second Time of Delivery," and each
such time and date of delivery is herein called a "Time of Delivery." Unless
otherwise instructed by Morgan Stanley in the request referred to above, such
certificates will be made available for checking and packaging at least
twenty-four hours prior to each Time of Delivery at the office of Morgan
Stanley, 1585 Broadway, New York, New York 10036.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Representatives, without charge, a
conformed copy of the Registration Statement (including exhibits thereto) and
for delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, prior to 5:00 p.m. New York City
time on the Business Day next succeeding this Agreement and during the period
mentioned in paragraph (c) below, in each case without charge, as many copies
of the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as the
Representatives may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Securities, to furnish to the
Representatives a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which the Representatives
reasonably objects.
(c) If, during such period after the first date of the public
offering of the Securities as the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, any event
shall occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Underwriters, and to the dealers (whose names and
addresses the Representatives will furnish to the Company) to which Securities
may have been sold by the Representatives on behalf of the Underwriters and to
any other dealer upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus
is delivered to a purchaser, be misleading or so that the Prospectus, as so
amended or supplemented, will comply with law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws or insurance securities laws of such
jurisdictions as the Underwriters shall reasonably request and to pay all
expenses (including fees and disbursements of counsel) in connection with such
qualification and in connection with any review of the offering of the
Securities by the National Association of Securities Dealers, Inc., if any.
(e) To make generally available to the Company's security
holders and to the Underwriters as soon as practicable an earnings statement
covering a twelve-month period beginning on the first day of the first full
fiscal quarter after the date of this Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the 1933 Act and the 1933 Act
Regulations.
(f) During the period mentioned in paragraph (c) above, to
advise the Underwriters promptly of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose.
(g) To use its best efforts to list, subject to notice of
issuance, the Securities and the Shares on the New York Stock Exchange and to
cause the Securities to be registered under the 1934 Act.
(h) To reserve and keep available at all times, free of liens
and adverse claims, sufficient shares of Common Stock to satisfy any
obligations to issue Shares upon settlement of the Purchase Contracts and
pursuant to the Prepaid Securities Indenture.
(i) Not to, and to cause its subsidiaries not to, without the
prior written consent of the Representatives, directly or indirectly, for a
period of 60 days after the date of the Prospectus, sell, offer to sell, grant
any option for the sale of, or otherwise dispose of, or enter into any
agreement to sell, any Securities, Purchase Contracts, Prepaid Securities or
Common Stock or any Securities of the Company similar to the Securities,
Purchase Contracts, Prepaid Securities or Common Stock or any securities
convertible into or exchangeable or exercisable for any Securities, Purchase
Contracts, Prepaid Securities or Common Stock; provided, however, that such
restrictions shall not affect the ability of the Company or its subsidiaries
to take any such action (i) as a consequence of obligations under securities
outstanding prior to the date of the Prospectus, (ii) in connection with any
employee benefit or incentive plan of the Company or its subsidiaries or (iii)
in connection with the offering of the Securities.
6. Expenses. The Company will pay (i) all expenses incident
to the performance of its obligations under this Agreement, (ii) the expenses
of printing all documents relating to the offering and of the mailing and
delivering of copies thereof to the Underwriters, (iii) any fees charged by
investment rating agencies for rating the Securities and (iv) the fees and
expenses incurred in connection with the listing of the Securities, and the
Shares on the New York Stock Exchange.
7. Conditions to Closing. The obligations of the
Underwriters hereunder, as to the Securities to be delivered at each Time of
Delivery, shall be subject to the condition that all representations and
warranties and other statements of the Company herein are, at and as of such
Time of Delivery, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of this Agreement
and prior to the Time of Delivery, there shall not have occurred any material
adverse change, or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings, business
or operations, of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(c) The Representatives shall have received on the Time of
Delivery a certificate, dated the Time of Delivery and signed by an executive
officer of the Company, to the effect set forth in clauses (a) and (b) above
and to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Time of Delivery
and that the Company has complied with all of the agreements and satisfied all
of the obligations on its part to be performed or satisfied on or before the
Time of Delivery.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(d) The Representatives shall have received on the Time of
Delivery opinions of Piper & Marbury L.L.P., Maryland counsel to the Company,
Susan L. Harris, Esq., Senior Vice President and General Counsel--Corporate
Affairs for the Company, and Davis Polk & Wardwell, special counsel to the
Company, dated the Closing Date, to the effect set forth in Exhibits A, B and
C, respectively. In giving such opinion, Ms. Harris may rely, as to matters
governed by laws other than the laws of the State of California and the
federal law of the United States of America, on an opinion or opinions of
Davis Polk & Wardwell and Piper & Marbury L.L.P., and Davis Polk & Wardwell
may rely, as to matters governed by laws other than the laws of the State of
New York and the federal law of the United States of America, on an opinion of
Piper & Marbury L.L.P., in each case so long as such opinion shall be dated
the Time of Delivery and in form and substance satisfactory to the
Representatives, and shall expressly permit the Underwriters to rely thereon
as if such opinion were addressed to Underwriters.
(e) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Underwriters, shall have furnished to you such opinion or opinions, dated such
Time of Delivery, as you may reasonably request, and the Company shall have
furnished to such counsel such documents as they may request for the purpose
of enabling them to pass upon such matters.
(f) The Representatives shall have received on the date hereof
and at each Time of Delivery a letter, dated the date hereof or the Time of
Delivery, respectively, in form and substance satisfactory to the
Representatives, from the Company's independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters in accordance with AICPA standards, with
respect to the financial statements and certain financial information
contained in or incorporated by reference into the Prospectus.
(g) The Securities and the Shares to be issued pursuant to the
Purchase Contract Agreement or the Prepaid Securities Indenture shall have
been approved for listing on the New York Stock Exchange upon notice of
issuance.
(h) On each Time of Delivery, (i) the Securities shall have a
rating of at least "Baa2" from Moody's Investors Service, Inc. and at least
"A-" from Standard & Poor's Corporation as evidenced in a letter from such
rating agencies or by other evidence satisfactory to the Underwriters and (ii)
no securities of the Company shall have been downgraded or placed on any
"watch list" for possible downgrading by any nationally recognized statistical
rating organization and the Company shall have delivered to the
Representatives a letter from such rating agency (or other evidence
satisfactory to the Representatives), confirming that the Securities have such
ratings.
(i) The Representatives shall have received a letter
from Mr. Eli Broad, substantially as set forth in the Prospectus in the last
sentence of the fourth paragraph under the caption "Underwriting," and such
letter shall remain in effect and no terms thereof shall have been violated.
8. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the 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 or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such
action or claim), caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information furnished to the Company by any Underwriter in writing
through the Representatives expressly for use therein; provided, however, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person
asserting such losses, claims, damages or liabilities purchased Securities, or
any person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented, if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to
such purchase, and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such losses, claims, damages or
liabilities. This indemnity will be in addition to any liability which the
Company may otherwise have.
Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only to the extent that any untrue statement or omission
or alleged untrue statement or omission was made in reliance upon and in
conformity with information furnished to the Company by any Underwriter in
writing through the Representatives expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto. This indemnity will be in addition to any liability
which the Underwriters may otherwise have.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by Morgan
Stanley, in the case of parties indemnified pursuant to the second preceding
paragraph, and by the Company, in the case of parties indemnified pursuant to
the first preceding paragraph. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first or second
paragraph in this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Securities shall be
deemed to be in the same respective proportions as (i) in the case of the
Company, the Price to Public less Underwriting Discounts and Commissions
(before deducting expenses) or (ii) in the case of the Underwriters, the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus Supplement,
bears to the aggregate public offering price of the Securities. The relative
fault of the Company on the one hand and of the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant to
this Section 8 are several in proportion to the respective number of
Securities purchased by each of such Underwriters and not joint.
The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 8 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law
or in equity.
The indemnity and contribution provisions contained in this
Section 8 and the representations and warranties of the Company contained
herein shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its directors or officers or any person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
9. Termination. This Agreement (or, in the case of any Time
of Delivery subsequent to the First Time of Delivery, the parties obligations
with respect to the Optional Securities pursuant to Section 4 hereof) shall be
subject to termination, by notice given by the Representatives to the Company,
if (a) after the execution and delivery of this Agreement and prior to any
Time of Delivery (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, the New York Stock Exchange or the
American Stock Exchange, (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse, or (iv) a general moratorium on
commercial banking activities in New York shall have been declared by either
federal or New York State authorities, and (b) in the case of any of the
events specified in clauses (a)(i) through (iv), such event, singly or
together with any other such event, makes it, in the judgment of the
Representatives, impracticable to market the Securities on the terms and in
the manner contemplated in the Prospectus.
10. Defaulting Underwriters. If, on any Time of Delivery, any
one or more of the Underwriters shall fail or refuse to purchase Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of the Securities to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the number of Securities set forth opposite their respective names set
forth in Schedule I hereto above bears to the aggregate number of Securities
set forth opposite the names of all such non-defaulting Underwriters, or in
such other proportions as the Representatives may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
number of Securities that any Underwriter has agreed to purchase pursuant to
this Agreement on a Time of Delivery be increased pursuant to this Section 10
by a number in excess of one-ninth of such number of Securities without the
written consent of such Underwriter. If, on the First Time of Delivery, any
Underwriter or Underwriters shall fail or refuse to purchase Securities to be
purchased on such date and the aggregate number of Securities with respect to
which such default occurs is more than one-tenth of the aggregate number of
Securities to be purchased on such date, and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Representatives or the Company shall
have the right to postpone the First Time of Delivery but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Second Time of Delivery, any
Underwriter or Underwriters shall fail or refuse to purchase Securities to be
purchased on such date and the aggregate number of Securities with respect to
which such default occurs is more than one-tenth of the aggregate number of
Securities to be purchased on such date, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase
Securities to be purchased on such date or (ii) purchase not less than the
number of Securities that such non-defaulting Underwriters would have been
obligated to purchase on such date in the absence of such default. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Securities. Nothing in
the foregoing sentence shall limit the Company's obligations to pay expenses
as provided in Section 6.
11. Notices. In all dealings hereunder, you shall act on
behalf of each of the Underwriters, and the parties hereto shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
any Underwriter made or given by Morgan Stanley as the lead Representative of
the Underwriters.
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by mail
to Morgan Stanley as the lead representative, at 1585 Broadway, New York, N.Y.
10036, Attention: Legal Department; and if to the Company shall be delivered
or sent by mail or facsimile transmission to it at SunAmerica Inc., 1
SunAmerica Center, 1999 Avenue of the Stars, Century City, Los Angeles,
California 90067-6022; Attention: Susan Harris; provided, however, that any
notice to an Underwriter pursuant to Section 8 hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire or telex constituting
such Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
12. Parties. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters and the Company and, to the extent
provided in Sections 9 hereof, the officers and directors of the Company and
each person who controls the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. Counterparts. This Agreement may be executed by any one
or more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
15. Acknowledgment. The Company and the Underwriters
acknowledge that Davis Polk & Wardwell, which is acting as special counsel to
the Company in connection with the offer and sale of the Securities, also acts
as counsel from time to time to one or more of the Underwriters in connection
with unrelated matters. The Company and the Underwriters consent to Davis
Polk & Wardwell so acting as special counsel to the Company. The Company and
the Underwriters also acknowledge that Skadden, Arps, Slate, Meagher & Flom
LLP, which is acting as counsel to the Underwriters in connection with the
offer and sale of the Securities, also acts as counsel from time to time to
the Company and certain of its affiliates in connection with unrelated
matters. The Company and the Underwriters consent to Skadden, Arps, Slate,
Meagher & Flom LLP so acting as counsel to the Underwriters.
16. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
SUNAMERICA INC.
By: /s/ James Belardi
-------------------------------
Name: James Belardi
Title: Executive Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
SMITH BARNEY INC.
Acting severally on behalf of
themselves and the several
Underwriters named on Schedule I hereto
By: Morgan Stanley & Co. Incorporated
By: /s/ Glen Robson
-------------------------------
Vice President
SCHEDULE I
NUMBER OF
OPTIONAL
TOTAL NUMBER SECURITIES TO
OF FIRM BE DELIVERED
SECURITIES IF MAXIMUM
TO BE OPTION
Underwriter DELIVERED EXERCISED
- ----------- ------------ -------------
Morgan Stanley & Co. Incorporated 1,518,150 227,724
Merrill Lynch, Pierce, Fenner & Smith 1,518,150 227,722
Incorporated
Goldman, Sachs & Co. 1,518,150 227,722
Smith Barney Inc. 1,518,150 227,722
Advest, Inc. 178,500 26,775
Sanford C. Bernstein & Co., Inc. 178,500 26,775
Dain Bosworth Incorporated 178,500 26,775
Dean Witter Reynolds Inc. 357,100 53,565
Donaldson, Lufkin & Jenrette
Securities Corporation 357,100 53,565
A.G. Edwards & Sons, Inc. 357,100 53,565
EVEREN Securities, Inc. 178,500 26,775
First Albany Corporation 178,500 26,775
Interstate/Johnson Lane Corporation 178,500 26,775
Janney Montgomery Scott Inc. 178,500 26,775
Legg Mason Wood Walker, Incorporated 178,500 26,775
McDonald & Company Securities, Inc. 178,500 26,775
Morgan Keegan & Company, Inc. 178,500 26,775
Oppenheimer & Co., Inc. 357,100 53,565
Piper Jaffray Inc. 178,500 26,775
The Robinson-Humphrey Company, Inc. 178,500 26,775
Wedbush Morgan Securities 178,500 26,775
Wheat, First Securities, Inc. 178,500 26,775
---------- ---------
Total 10,000,000 1,500,000
========== =========
Exhibit A
Opinion of Maryland Counsel for the Company
The opinion of Piper & Marbury L.L.P., Maryland counsel for
the Company, to be delivered pursuant to Section 7(d) of the Underwriting
Agreement, shall be limited to the laws of the State of Maryland and shall be
to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
under the State of Maryland; and the Company has the corporate
power under the laws of the State of Maryland and under its
charter to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and the
Prospectus;
(ii) each of the Purchase Contract Agreement, the
Purchase Contracts, the Pledge Agreement, the Prepaid Securities
Indenture, the Prepaid Securities and the Underwriting Agreement
has been duly authorized and each of the Purchase Contract
Agreement, the Purchase Contracts, the Pledge Agreement, the
Prepaid Securities Indenture and the Underwriting Agreement has
been duly executed by the Company;
(iii) the Securities, including the Purchase Contracts
constituting a part of the Securities, have been duly authorized,
executed and delivered by the Company and constitute valid and
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except that the Treasury
Notes constituting part of the Securities are obligations of the
United States Government and not of the Company, and except as (a)
the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium and
other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of
general applicability (regardless of whether considered in a
proceeding at law or in equity);
(iv) the statements in the Prospectus under the caption
"Description of Capital Stock" insofar as such statements
constitute summaries of the legal matters or charter documents
referred to therein, fairly present the matters referred to
therein;
(v) the execution and delivery of each of the
Underwriting Agreement, the Purchase Contracts, the Purchase
Contract Agreement, the Pledge Agreement and the Prepaid
Securities Indenture, and the consummation of the transactions
contemplated therein, will not result in any violation of the
provisions of the charter or by-laws of the Company or, any
material applicable law, administrative regulations or
administrative or court decree applicable to the Company (except
that no opinion need be expressed with respect to Maryland
securities or Blue Sky laws);
(vi) the Prepaid Securities have been duly authorized by
the Company and, when issued, executed, authenticated and
delivered in accordance with the Prepaid Securities Indenture the
Purchase Contract Agreement and the Pledge Agreement, will be
valid and binding agreements of the Company, enforceable in
accordance with their terms, except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability
(regardless of whether considered in a proceeding at law or in
equity).
(vii) the shares of Common Stock issuable upon settlement
of the Securities and the Prepaid Securities have been duly
authorized and reserved for issuance and such shares, when issued
and delivered by the Company in accordance with the provisions of
the Purchase Contract Agreement and the Pledge Agreement, in the
case of the Securities, or the Prepaid Securities Indenture, in
the case of the Prepaid Securities, will be validly issued, fully
paid and nonassessable and the issuance of such shares is not
subject to any preemptive or other similar rights arising by law;
(viii) the forms of certificates used to evidence the
Securities, the Prepaid Securities and the Shares comply with all
applicable statutory requirements; and
(ix) the Company's Restated Articles of Incorporation
filed with the Maryland State Department of Assessments and
Taxation on October 3, 1991 represented on such date the true,
correct and complete articles of incorporation, as amended,
governing the Company.
Exhibit B
Opinion of Counsel for the Company
The opinion of Susan L. Harris, Senior Vice President and
General Counsel--Corporate Affairs of the Company, to be delivered pursuant to
Section 7(d) of the Underwriting Agreement shall be to the effect that:
(i) to the best of such counsel's knowledge and
information, the Company is duly qualified as a foreign
corporation to transact business and 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,
on the earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise;
(ii) the authorized, issued and outstanding capital
stock of the Company is correctly set forth in the Prospectus
under "Description of Capital Stock" as of September 30, 1996;
(iii) each Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation and has the corporate
power and authority to own, lease and operate its properties and
to conduct its business as presently conducted and as described in
the Registration Statement and Prospectus, it being understood
that, as to each Subsidiary the foregoing opinion is based solely
on a certificate dated as of a recent date of an appropriate
official of the jurisdiction of incorporation of such subsidiary
and, as applicable, a letter from CT Corporation System dated
as of a recent date as to the good standing of such Subsidiary
in such jurisdiction, copies of which will be delivered to the
Representatives on the date of such opinion; nothing has come to
the attention of such counsel to lead such counsel to believe that
any of SunAmerica Life Insurance Company or Anchor National Life
Insurance Company is not duly qualified as a foreign corporation
to transact business or is not in good standing in each
jurisdiction in which such qualification is required, except where
the failure to so qualify or be in good standing would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise; to the best of such
counsel's knowledge and information, all of the issued and
outstanding capital stock of each Subsidiary is owned (except for
directors qualifying shares), directly or through subsidiaries,
by the Company, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity;
(iv) to the best of such counsel's knowledge and
information, the issuance and delivery of the Securities and the
Prepaid Securities and the Common Stock issuable upon settlement
of the Securities and the Prepaid Securities, the execution and
delivery of this Agreement, the Purchase Contracts, the Purchase
Contract Agreement, the Pledge Agreement, and the Prepaid
Securities Indenture and the consummation of the transactions
contemplated herein and therein, will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Subsidiaries
pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or
any of the 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, 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 considered as one enterprise, nor will such
action result in any violation of the provisions of the charter or
by-laws of the Company and the Subsidiaries or any material
applicable law, administrative regulation or administrative or
court decree; and, to the best of such counsel's knowledge and
information, no authorization, consent, or approval of, or other
order by any court or administrative or governmental authority or
agency is required for the performance by the Company of its
obligations under the Underwriting Agreement, the Purchase
Contracts, the Purchase Contract Agreement, the Pledge Agreement
and Prepaid Securities Indenture, or for the issuance and sale of
the Securities or the Prepaid Securities, except such as may be
required by the 1933 Act or the 1933 Act Regulations, the
securities or Blue Sky laws or insurance securities laws of the
various states or except such as have been obtained;
(v) to the best of such counsel's knowledge and
information, there are no statutes or regulations that are
required to be described in the Registration Statement or the
Prospectus that are not described as required and there are no
legal or governmental proceedings pending or threatened which are
required to be described in the Registration Statement or the
Prospectus, other than those disclosed therein;
(vi) to the best of such counsel's knowledge and
information there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be
filed as exhibits thereto, other than those described or referred
to therein or filed as exhibits thereto, the descriptions thereof
or references thereto are correct in all material respects and, to
the best of such counsel's knowledge and information, no default
exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage loan agreement, note, lease or other
instrument so described, referred to or filed, which default could
have a material adverse effect on the Company and its subsidiaries
considered as one enterprise;
(vii) (1) such counsel is of the opinion that each
document, if any, filed pursuant to the 1934 Act and incorporated
by reference in the Prospectus at the time it was filed or last
amended (except for financial statements, supporting schedules and
other financial data included or incorporated by reference
therein, as to which such counsel need not express any opinion)
appeared on its face to be appropriately responsive in all
material respects to the requirements of the 1934 Act and the
applicable rules and regulations of the Commission thereunder, (2)
nothing has come to the attention of such counsel that would lead
such counsel to believe that (except for financial statements,
supporting schedules and other financial data included or
incorporated by reference therein and except for the parts of the
Registration Statement that constitute the Form T-1s, as to which
such counsel need not express any belief) each part of the
Registration Statement, when such part became effective and as of
the date of this Agreement contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (3) such counsel is of the opinion that the
Registration Statement, as of its effective date, and the
Prospectus, as of the Time of Delivery (except in each case for
financial statements, supporting schedules and other financial
data included or incorporated by reference therein and except
for the parts of the Registration Statement that constitute the
Form T-1s, as to which such counsel need not express any
opinion), appeared on their face to be appropriately responsive
in all material respects to the requirements of the 1933 Act
and the applicable rules and regulations of the Commission
thereunder and (4) nothing has come to the attention of such
counsel that would lead such counsel to believe that (except
for financial statements, supporting schedules and other
financial data included or incorporated by reference therein
and except for the parts of the Registration Statement that
constitute the Form T-1s, as to which such counsel need not
express any belief) the Prospectus as of the date such opinion
is delivered contains an untrue statement of a material fact 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; and
(viii) the Registration Statement is effective under the
1933 Act, and to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act, and no
proceedings for such purpose are pending before or threatened by
the Commission.
With respect to the foregoing paragraph, such counsel may
state that her opinion and belief are based upon her participation in the
preparation of the Registration Statement and Prospectus and any amendments,
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified.
Exhibit C
Opinion of Special Counsel for the Company
The opinion of Davis Polk & Wardwell, special counsel to the
Company, to be delivered pursuant to Section 7(d) of the Underwriting
Agreement, shall be to the effect that:
(i) The statements in the Prospectus under the captions
"Description of the Securities," "Description of the Purchase
Contracts," "Certain Provisions of the Purchase Contract Agreement
and the Pledge Agreement," "Description of the Prepaid
Securities," "Certain United States Federal Income Tax
Considerations," and "United States State and Local Tax
Considerations," insofar as such statements constitute summaries
of the legal matters or documents referred to therein, fairly
summarize, in all material respects, such legal matters or
documents.
(ii) Nothing has come to the attention of such counsel
that would lead such counsel to believe that (except for financial
statements, supporting schedules and other financial data included
or incorporated by reference therein and except for those parts of
the Registration Statement that constitute the Form T-1s, as to
which such counsel need not express any belief) each part of the
Registration Statement, when such part became effective and as of
the date of this Agreement contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (2) such counsel is of the opinion that the
Registration Statement as of its effective date and the Prospectus
as of the date of such opinion (except for financial statements,
supporting schedules and other financial data included or
incorporated by reference therein, and except for those parts of
the Registration Statement that constitute the Form T-1s, as to
which such counsel need not express any opinion) appeared on their
face to be appropriately responsive in all material respects to
the requirements of the 1933 Act and the applicable rules and
regulations of the Commission thereunder and (3) nothing has come
to the attention of such counsel that would lead such counsel to
believe that (except for financial statements, supporting
schedules and other financial data included or incorporated by
reference therein and except for those parts of the Registration
Statement that constitute the Form T-1s, as to which such counsel
need not express any belief) the Prospectus as of the date such
opinion is delivered contains any untrue statement of a material
fact 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.
(iii) The Prepaid Securities Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended; the
Registration Statement is effective under the 1933 Act and, to the
best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under
the 1933 Act, and no proceedings for such purpose are pending
before or threatened by the Commission.
(iv) The Company is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(v) To the best of such counsel's knowledge and
information, no authorization, consent or approval of, or other
order by, any New York State or federal court or New York State or
federal administrative or governmental authority or agency is
required for the issuance and sale of the Securities and the
issuance of the Prepaid Securities or the issuance and sale of the
Shares by the Company pursuant to the terms of the Prepaid
Securities Indenture or the Pledge Agreement and Purchase Contract
Agreement, except such as may be required under the 1933 Act, the
1934 Act or by the securities or Blue Sky laws or insurance
securities laws of the various states or except such as have been
obtained.
(vi) Assuming that the Purchase Contract Agreement, the
Pledge Agreement, the Purchase Contracts underlying the Securities
being delivered at the Time of Delivery, the Securities, the
Prepaid Securities Indenture and the issuance of the Prepaid
Securities in accordance with the terms of the Prepaid Securities
Indenture or the Purchase Contract Agreement, have been duly
authorized, executed and delivered by the Company under Maryland
law, each is a valid and binding agreement of the Company (and
together the Purchase Contract Agreement, the Pledge Agreement and
the Purchase Contracts create, to the extent provided therein, a
valid interest of the holders of the Securities in the Treasury
Notes) enforceable against the Company in accordance with its
terms, except (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability;
provided, however, that based on a review of applicable case law,
upon the occurrence of a Termination Event, Section 365(e)(2) of
the Bankruptcy Code (11 U.S.C. Section Section 101-1330, as
amended) should not substantively limit the provisions of Sections
4.02 and 5.09 of the Purchase Contract Agreement and Section 4(a)
of the Pledge Agreement that require termination of the Purchase
Contracts and release of the Collateral Agent's security interest
in the Treasury Notes; provided, however, that procedural
restrictions respecting relief from the automatic stay under
Section 362 of the Code may affect the timing of the exercise of
such rights and remedies.
(vii) Assuming that (1) the Pledge Agreement has been duly
authorized, executed and delivered by the Agent on behalf of each
of the holders of the Securities ("Holders"), (2) the Agent is
duly incorporated and validly existing under the laws of the state
of its incorporation, (3) the Agent and each of the Holders has
full power, authority and legal right (including, without
limitation, any legal right dependent upon there being no
necessary governmental approvals or filings and no conflict with
laws, governing documents or contracts) to make and perform its
obligations under the Pledge Agreement, (4) the Pledge Agreement
is the legal, valid, binding and enforceable obligation of the
Agent on behalf of each of the Holders, and (5) the Agent and each
Holder has sufficient rights in the Treasury Notes for the
security interest of the Collateral Agent for the benefit of the
Company to attach, the "transfer" (within the meaning of Section
8-313 of the UCC) of the Treasury Notes to the Collateral Agent
for the benefit of the Company, together with the Pledge
Agreement, will create a valid and perfected Security interest in
such Treasury Notes to secure the obligations of the Holders under
the Purchase Contracts, subject to customary qualifications
reasonably acceptable to the Representatives. References to (x)
the "UCC" shall mean the Uniform Commercial Code as in effect on
the date hereof in the State of New York and (y) "Financial
Intermediary" shall mean The First National Bank of Chicago acting
solely in its capacity as a "depositary" as defined in 31 C.F.R.
Section 306 or similar federal regulations governing the transfer
of U.S. Government book-entry securities. "Transfer" of the
Treasury Notes to the Collateral Agent for the benefit of the
Company will occur upon the latest of (1) the making by The
Federal Reserve Bank of New York of appropriate entries
transferring such Treasury Notes on its books and records to the
book-entry account of the Financial Intermediary at The Federal
Reserve Bank of New York and (2) the sending of a confirmation by
the Financial Intermediary to the Collateral Agent for the benefit
of the Company of the purchase by the Collateral Agent for the
benefit of the Company of such Treasury Notes and the
identification by book-entry by the Financial Intermediary of such
Treasury Notes as belonging to the Collateral Agent for the
benefit of the Company.
With respect to the opinion set forth in paragraph (ii),
such counsel may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendments or supplements thereto (other than the documents
incorporated by reference) and upon review and discussion of the contents
thereof (including documents incorporated by reference) but are without
independent check or verification, except as specified.
EXHIBIT 1.2
SunAmerica Inc.
8.5% Premium Equity Redemption Cumulative
Security Units - PERCS Units
(Stated Amount $37.50 Per Security)
FIRST AMENDMENT TO
UNDERWRITING AGREEMENT
THIS FIRST AMENDMENT, dated as of November 1, 1996 (the "First
Amendment"), between SunAmerica Inc., a Maryland corporation (the "Company"),
and the several Underwriters named in Schedule I hereto (the "Underwriters")
amends, to the extent set forth herein, the Underwriting Agreement dated as of
October 31, 1996 between the Company and the underwriters named therein (the
"Underwriting Agreement").
The Company and the Underwriters desire to change the
composition of the underwriters set forth in Schedule I of the Underwriting
Agreement, and agree that Schedule IA attached hereto is to be substituted for
Schedule I to the Underwriting Agreement and that no other change shall be made
to the Underwriting Agreement. This First Amendment shall from and after the
date hereof be deemed to be part of the terms and conditions of the
Underwriting Agreement. The Underwriting Agreement as amended by this First
Amendment is in all respects confirmed and preserved.
This First Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
This First Amendment shall be governed by and construed in
accordance with the internal laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed as of November 1, 1996.
SUNAMERICA INC.
By: /s/ James Belardi
-------------------------------
Name: James Belardi
Title: Executive Vice President
MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
SMITH BARNEY INC.
Acting severally on behalf of
themselves and the several
Underwriters named in Schedule I hereto
By: Morgan Stanley & Co. Incorporated
By: /s/ Glenn Robson
-------------------------------
Vice President
SCHEDULE IA
NUMBER OF
OPTIONAL
TOTAL NUMBER SECURITIES TO
OF FIRM BE DELIVERED
SECURITIES IF MAXIMUM
TO BE OPTION
Underwriter DELIVERED EXERCISED
- ----------- ------------ -------------
Morgan Stanley & Co. Incorporate 1,607,425 241,116
Merrill Lynch, Pierce, Fenner & Smith 1,607,425 241,113
Incorporated
Goldman, Sachs & Co. 1,607,425 241,113
Smith Barney Inc. 1,607,425 241,113
Advest, Inc. 178,500 26,775
Sanford C. Bernstein & Co., Inc. 178,500 26,775
Dain Bosworth Incorporated 178,500 26,775
Dean Witter Reynolds Inc. 357,100 53,565
A.G. Edwards & Sons, Inc. 357,100 53,565
EVEREN Securities, Inc. 178,500 26,775
First Albany Corporation 178,500 26,775
Interstate/Johnson Lane Corporation 178,500 26,775
Janney Montgomery Scott Inc. 178,500 26,775
Legg Mason Wood Walker, Incorporated 178,500 26,775
McDonald & Company Securities, Inc. 178,500 26,775
Morgan Keegan & Company, Inc. 178,500 26,775
Oppenheimer & Co., Inc. 357,100 53,565
Piper Jaffray Inc. 178,500 26,775
The Robinson-Humphrey Company, Inc. 178,500 26,775
Wedbush Morgan Securities 178,500 26,775
Wheat, First Securities, Inc. 178,500 26,775
---------- ---------
Total 10,000,000 1,500,000
========== =========
EXHIBIT 1.3
SunAmerica Inc.
$375,000,000
6.20% Notes due October 31, 1999
UNDERWRITING AGREEMENT
October 31, 1996
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Sirs:
SunAmerica Inc., a Maryland corporation (the "Company"),
confirms its agreement to sell, subject to the terms and conditions stated
herein, to the several Underwriters named in Schedule I hereto (the
"Underwriters") $375 million principal amount of 6.20% Notes due October 31,
1999 (the "Securities") of the Company. The Securities will be issued
pursuant to the provisions of a Senior Indenture (the "Senior Indenture"),
dated as of April 15, 1993, as supplemented by indenture supplements dated
June 28, 1993 and October 28, 1996 (collectively with the Senior Indenture the
"Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (the "Trustee").
SunAmerica Capital Trust III, SunAmerica Capital Trust IV,
SunAmerica Capital Trust V and SunAmerica Capital Trust VI (collectively, the
"SunAmerica Trusts") and the Company have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(Nos. 333-14201, 333-14201-01, 333-14201-02, 333-14201-03 and 333-14201-04)
and pre-effective Amendment Nos. 1 and 2 thereto, including a prospectus,
covering the registration of securities of the Company and the SunAmerica
Trusts (including the Securities) 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 Commission under the 1933
Act (the "1933 Act Regulations"). Such registration statement, as so amended,
has been declared effective by the Commission. Such registration statement,
as so amended, including the exhibits thereto and the information, if any,
deemed to be a part thereof pursuant to Rule 430A(b) of the 1933 Act
Regulations (the "Rule 430A Information") is referred to herein as the
"Registration Statement;" and the final prospectus and the prospectus
supplement relating to the offering of the Securities, in the form first
furnished to the Underwriters by the Company for confirming sales of the
Securities, are collectively referred to herein as the "Prospectus;" provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall be deemed to include all documents incorporated therein by
reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of this Agreement; provided, further, that
if the Company files a registration statement with the Commission pursuant to
Section 462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration
Statement"), then after such filing, all references to "Registration
Statement" shall be deemed to include the Rule 462(b) Registration Statement.
As used herein, the term "preliminary prospectus" shall be deemed to refer to
the preliminary prospectus supplement specifically relating to the Securities
and the prospectus used before the registration statement became effective.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
in the Registration Statement, any preliminary prospectus or the Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be.
1. Representations and Warranties. (a) The Company
represents and warrants to each of the Underwriters as follows:
(i) The Registration Statement (including the most
recent post-effective amendment thereto, if any) has been declared
effective by the Commission; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(ii) (a) Each document filed or to be filed
pursuant to the 1934 Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material
respects with the 1934 Act and the applicable rules and regulations
of the Commission thereunder, (b) each part of the Registration
Statement, when such part became effective, did not contain, and each
such part, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Registration Statement,
since the later of the date it became effective and the date of the
most recent post-effective amendment, if any, will not fail to
reflect any facts or events which individually or in the aggregate
represent a fundamental change in the information set forth in the
Registration Statement as of such date, (c) the Registration
Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects
with the 1933 Act and the applicable 1933 Act Regulations and (d)
the Prospectus does not contain and, as amended or supplemented,
if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations
and warranties set forth in this Section 1(ii) do not apply to (A)
statements or omissions in the Registration Statement or the
Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter expressly
for use therein or (B) to that part of the Registration Statement
that constitutes the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the trustee thereunder.
(iii) This Agreement and the transactions
contemplated hereby have been duly authorized, and this Agreement has
been duly executed and delivered by the Company.
(iv) The Senior Indenture has been duly qualified
under the Trust Indenture Act and the Indenture 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, reorganization, fraudulent transfer,
moratorium and other similar laws now or hereafter in effect relating
to or affecting creditors' rights generally and (ii) 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).
(v) The Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be 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, reorganization, fraudulent transfer, moratorium and other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (ii) 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).
(vi) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Maryland, with corporate power and authority to own,
lease and operate its properties and to conduct its business as
presently conducted and as described in the Registration Statement
and Prospectus; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise.
(vii) Each of SunAmerica Life Insurance Company,
Anchor National Life Insurance Company, Resources Trust Company and
Ford Life Insurance Company (together, the "Subsidiaries") has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as
described in the Registration Statement and Prospectus, and is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to so qualify or
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries, considered as one
enterprise; and all of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and validly issued, is fully
paid and nonassessable and is owned (except for directors qualifying
shares) directly or through subsidiaries, by the Company, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(viii) The authorized, issued and outstanding
capital stock of the Company is as set forth in the Registration
Statement and Prospectus (except for subsequent issuances, if any,
pursuant to reservations, stock option agreements, employee benefit
plans or the exercise of convertible securities which may be referred
to in the Registration Statement and Prospectus); all of the issued
and outstanding shares of capital stock have been duly authorized and
validly issued and are fully paid, nonassessable and not subject to
any preemptive or similar rights.
(ix) None of the Company nor any of the
Subsidiaries is in violation of its respective charter or bylaws, as
applicable, or in default in the performance of any material
obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company or any of the Subsidiaries
is a party or by which any of them may be bound, or to which any of
the property or assets of the Company or of any of the Subsidiaries
is subject, or in violation of any applicable law, administrative
regulation or administrative or court order or decree, which
violation or default would, singly or in the aggregate, have a
material adverse effect on the condition, financial or otherwise, or
the earnings or business affairs of the Company and its subsidiaries,
considered as one enterprise; and the execution and delivery by the
Company of, and the performance by the Company of its obligations
under, this Agreement, the Indenture and the Securities and the
issuance and sale of the Securities will not conflict with or
constitute a breach of, or a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Subsidiaries pursuant to, any
material contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company or any of the Subsidiaries
ia a party or by which 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, 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 considered as one
enterprise, nor will such action result in any violation of the
provisions of the articles of incorporation or bylaws of the Company
or any of the Subsidiaries or any applicable law, administrative
regulation or administrative or court decree; 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 Securities, or the issuance and sale of the Securities, except
such as may be required by the securities or Blue Sky laws or
insurance securities laws of the various states in connection with
the offer and sale of the Securities or such as have been
obtained.
(x) There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or which are reasonably likely to
result in any 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, or which would be
reasonably likely to materially and adversely affect a material
portion of the properties or assets thereof or which is reasonably
likely to materially and adversely affect the consummation of this
Agreement, the Indenture or the Notes or the transactions
contemplated hereby or thereby; 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; and there are no contracts or
documents that are required to be filed as exhibits to the
Registration Statement, by the 1933 Act, the 1933 Act Regulations,
the 1934 Act or the 1934 Act Regulations thereunder that have not
been filed as required, except that by the Time of Delivery (as
defined herein) the Company will file on Form 8-K this Agreement and
certain other agreements relating to the Securities and the
transactions contemplated hereby.
(xi) The accountants who certified the financial
statements and supporting schedules included or incorporated by
reference in the Registration Statement and Prospectus are
independent public accountants with respect to the Company and the
subsidiaries of the Company as required by the 1933 Act and the 1933
Act Regulations promulgated thereunder.
(xii) The financial statements of the Company
included or incorporated by reference in the Registration Statement
or Prospectus present fairly the financial position of the Company
and the consolidated subsidiaries of the Company as of the dates
indicated and the results of their operations for the periods
specified; except as otherwise stated in the Registration Statement
and Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis; the ratios of earnings to fixed charges and
earnings to combined fixed charges (including preferred stock
dividends) included in the Registration Statement or Prospectus have
been calculated in compliance with Item 503(d) of Regulation S-K of
the Commission; and the supporting schedules included or incorporated
by reference in the Registration Statement or Prospectus present
fairly the information required to be included therein.
(xiii) Since the respective dates as of which
information is given in the Registration Statement and 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
its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (b) there have been no
transactions entered into by the Company or any of its subsidiaries
which are material to the Company and its subsidiaries, considered as
one enterprise, other than those entered into in the ordinary course
of business and (c) except for regular quarterly dividends on common
stock of the Company, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock.
(xiv) The Company and the Subsidiaries possess
such certificates, authorizations or permits issued by the
appropriate state or federal regulatory agencies or bodies as are
necessary to conduct the business as now conducted by them and as
described in the Registration Statement or Prospectus, except where
the failure to so possess such certificates, authorizations or
permits would not have a material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise; 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, considered as one
enterprise.
(xv) There are no holders of securities of the
Company with currently exercisable registration rights to have any
securities registered as part of the Registration Statement or
included in the offering contemplated by this Agreement.
(xvi) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(xvii) The Securities conform in all material
respects to all statements relating to the Securities contained in
the Prospectus and the Registration Statement.
(xviii) No "forward looking statement" (as defined
in Rule 175 under the Act) contained in the Registration Statement,
any Preliminary Prospectus or the Prospectus was made or reaffirmed
without a reasonable basis or was disclosed other than in good faith.
(xix) The Company recognizes and acknowledges for
all purposes of this Agreement that the only information relating to
any Underwriter furnished to the Company in writing by the
Underwriters expressly for use in the Registration Statement or the
Prospectus consists of the last paragraph on the cover page of the
Prospectus Supplement, and the names of the Underwriters and the
second sentence of the fourth paragraph and the entire third
paragraph under the caption "Underwriting" in the Prospectus
Supplement.
2. Public Offering. The Company is advised by the
Underwriters that the Underwriters propose to make a public offering of their
respective portions of the Securities as soon after this Agreement has been
entered into as in the Underwriters' judgment is advisable. The terms of the
public offering of the Securities are set forth in the Prospectus.
3. Purchase and Sale. Subject to the terms and conditions
herein set forth, the Company agrees to sell to the Underwriters, and each of
the Underwriters, severally and not jointly, agrees to purchase the Securities
set forth opposite the name of such Underwriter in Schedule I hereto.
4. Purchase and Delivery. Certificates in definitive or
temporary form for the Securities to be purchased by the Underwriters
hereunder, and in such denominations and registered in such names as Goldman,
Sachs & Co. ("Goldman") may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to
you against the delivery to the Company, by wire transfer of same day funds to
the account designated in writing by the Company, of the purchase price for
the Securities. The purchase price payable by the Underwriters for the
Securities shall be 99.567% of the principal amount thereof. The time and
date of such delivery and payment shall be 9:30 a.m., New York time, on
November 6, 1996, or such other time and date as you and the Company may agree
upon in writing. Such time and date for delivery of the Securities is herein
called the "Time of Delivery." Unless otherwise instructed by Goldman in the
request referred to above, such certificates will be made available for
checking and packaging at least twenty-four hours prior to the Time of
Delivery at the offices of Goldman in New York set forth on the first page
hereof.
5. Covenants of the Company. In further consideration of
the agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Underwriters, without charge, a conformed
copy of the Registration Statement (including exhibits thereto) and, prior to
5:00 p.m. New York City time on the Business Day next succeeding this
Agreement during the period mentioned in paragraph (c) below, as many copies
of the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement, as the
Underwriters may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Securities, to furnish to the
Underwriters a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Underwriters
reasonably object.
(c) If, during such period after the first date of the public
offering of the Securities as the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, any event
shall occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, forthwith to prepare, file with the Commission and furnish,
at its own expense, to the Underwriters, and to the dealers (whose names and
addresses the Underwriters will furnish to the Company) to which Securities
may have been sold by the Underwriters and to any other dealer upon request,
either amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading
or so that the Prospectus, as so amended or supplemented, will comply with
law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws or insurance securities laws of such
jurisdictions as the Underwriters shall reasonably request and to pay all
expenses (including fees and disbursements of counsel) in connection with such
qualification and in connection with any review of the offering of the
Securities by the National Association of Securities Dealers, Inc., if any.
(e) To make generally available to the Company's security
holders and to the Underwriters as soon as practicable an earnings statement
covering a twelve-month period beginning on the first day of the first full
fiscal quarter after the date of this Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the 1933 Act and the 1933 Act
Regulations.
(f) During the period mentioned in paragraph (c) above, to
advise the Underwriters promptly of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose.
(g) Not to, and to cause its subsidiaries not to, without the
prior written consent of the Underwriters, directly or indirectly, prior to
the First Time of Delivery, sell, offer to sell, grant any option for the sale
of, or otherwise dispose of, or enter into any agreement to sell, any
Securities, or any securities of the Company substantially similar to the
Securities or any securities convertible into or exchangeable or exercisable
for any Securities or substantially similar securities; provided, however,
that such restrictions shall not affect the ability of the Company or its
subsidiaries to take any such action (i) as a consequence of obligations under
securities outstanding prior to the date of the Prospectus, (ii) in connection
with any employee benefit or incentive plan of the Company or its subsidiaries
or (iii) in connection with the offering of the Securities.
6. Expenses. The Company will pay (i) all expenses incident
to the performance of its obligations under this Agreement, (ii) the expenses
of printing all documents relating to the offering and of the mailing and
delivering of copies thereof to the Underwriters and (iii) any fees charged by
investment rating agencies for rating the Securities.
7. Conditions to Closing. The obligations of the
Underwriters hereunder, as to the Securities to be delivered at the Time of
Delivery, shall be subject to the condition that all representations and
warranties and other statements of the Company herein are, at and as of the
Time of Delivery, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of this
Agreement and prior to the Time of Delivery, there shall not have occurred any
material adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations, of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus.
(c) The Underwriters shall have received on the Time of
Delivery a certificate, dated the Time of Delivery and signed by an executive
officer of the Company, to the effect set forth in clauses (a) and (b) above
and to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Time of Delivery
and that the Company has complied with all of the agreements and satisfied all
of the obligations on its part to be performed or satisfied on or before the
Time of Delivery.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Time of
Delivery opinions of Piper & Marbury L.L.P., Maryland counsel to the Company,
Susan L. Harris, Esq., Senior Vice President and General Counsel--Corporate
Affairs for the Company, and Davis Polk & Wardwell, special counsel to the
Company, dated the Closing Date, to the effect set forth in Exhibits A, B and
C, respectively. In giving such opinion, Ms. Harris may rely, as to matters
governed by laws other than the laws of the State of California and the
federal law of the United States of America, on an opinion or opinions of
Davis Polk & Wardwell and Piper & Marbury L.L.P., and Davis Polk & Wardwell
may rely, as to matters governed by laws other than the laws of the State of
New York and the federal law of the United States of America, on an opinion of
Piper & Marbury L.L.P., in each case so long as such opinion shall be dated
the Time of Delivery and in form and substance satisfactory to the
Underwriters, and shall expressly permit the Underwriters to rely thereon as
if such opinion were addressed to the Underwriters.
(e) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Underwriters, shall have furnished to you such opinion or opinions, dated such
Time of Delivery, as you may reasonably request, and the Company shall have
furnished to such counsel such documents as they may request for the purpose
of enabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof
and the Time of Delivery a letter, dated the date hereof or the Time of
Delivery, respectively, in form and substance satisfactory to the
Underwriters, from the Company's independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters in accordance with AICPA standards, with
respect to the financial statements and certain financial information
contained in or incorporated by reference into the Prospectus.
(g) On the Time of Delivery, (i) the Securities shall have a
rating of at least "Baa1" from Moody's Investors Service, Inc. and at least
"A" from Standard & Poor's Corporation as evidenced in a letter from such
rating agencies or by other evidence satisfactory to the Underwriters and (ii)
no securities of the Company shall have been downgraded or placed on any
"watch list" for possible downgrading by any nationally recognized statistical
rating organization and the Company shall have delivered to the Underwriters a
letter from such rating agency (or other evidence satisfactory to the
Underwriters), confirming that the Securities have such ratings.
8. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the 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 or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such
action or claim), caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information furnished to the Company by such Underwriter in writing
expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting such losses, claims,
damages or liabilities purchased Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented, if
the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to such purchase,
and if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities. This
indemnity will be in addition to any liability which the Company may
otherwise have.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only to the extent that any untrue statement or omission
or alleged untrue statement or omission was made in reliance upon and in
conformity with information furnished to the Company by any Underwriter in
writing expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto. This
indemnity will be in addition to any liability which the Underwriters may
otherwise have.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by Goldman, in
the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first or second
paragraph in this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of the Securities (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus Supplement, bears to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and of the
Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective principal amount of Securities purchased by each of such
Underwriters and not joint.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 8 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 8 and the representations and warranties of the Company contained
herein shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its directors or officers or any person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
9. Termination. This Agreement shall be subject to
termination, by notice given by the Underwriters to the Company, if (a) after
the execution and delivery of this Agreement and prior to the Time of Delivery
(i) trading generally shall have been suspended or materially limited on or
by, as the case may be, the New York Stock Exchange or the American Stock
Exchange, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Representatives, is material and adverse, or (iv) a general moratorium on
commercial banking activities in New York shall have been declared by either
federal or New York State authorities, and (b) in the case of any of the
events specified in clauses (a)(i) through (iv), such event, singly or
together with any other such event, makes it, in the judgment of any of the
Underwriters, impracticable to market the Securities on the terms and in the
manner contemplated in the Prospectus.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Securities. Nothing in
the foregoing sentence shall limit the Company's obligations to pay expenses
as provided in Section 6.
10. Defaulting Underwriters. If, on the Time of Delivery,
any Underwriter or Underwriters shall fail or refuse to purchase Securities to
be purchased on such date and the aggregate number of Securities with respect
to which such default occurs is more than one-tenth of the aggregate number of
Securities to be purchased on such date, and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Representatives or the Company shall
have the right to postpone the Time of Delivery but in no event for longer
than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
11. Notices. In all dealings hereunder, the parties hereto
shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by Goldman on behalf of
the Underwriters.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail to Goldman Sachs & Co., 85 Broad Street, New York, New York 10004,
Attention: Izzy Goncalves; and if to the Company shall be delivered or sent
by mail or facsimile transmission to it at SunAmerica Inc., 1 SunAmerica
Center, 1999 Avenue of the Stars, Century City, Los Angeles, California
90067-6022; Attention: Susan Harris. Any such statements, requests, notices
or agreements shall take effect upon receipt thereof.
12. Parties. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters and the Company and, to the extent
provided in Sections 8 hereof, the officers and directors of the Company and
each person who controls the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. Counterparts. This Agreement may be executed by any one
or more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
15. Acknowledgment. The Company and the Underwriters
acknowledge that Davis Polk & Wardwell, which is acting as special counsel to
the Company in connection with the offer and sale of the Securities, also acts
as counsel from time to time to one or more of the Underwriters in connection
with unrelated matters. The Company and the Underwriters consent to Davis
Polk & Wardwell so acting as special counsel to the Company. The Company and
the Underwriters also acknowledge that Skadden, Arps, Slate, Meagher & Flom
LLP, which is acting as counsel to the Underwriters in connection with the
offer and sale of the Securities, also acts as counsel from time to time to
the Company and certain of its affiliates in connection with unrelated
matters. The Company and the Underwriters consent to Skadden, Arps, Slate,
Meagher & Flom LLP so acting as counsel to the Underwriters.
16. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
SUNAMERICA INC.
By: /s/ James Belardi
--------------------------
Name: James Belardi
Title: Exec. Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
GOLDMAN, SACHS & CO.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
By: Goldman, Sachs & Co.
By: /s/ Goldman, Sachs & Co.
--------------------------
SCHEDULE I
PRINCIPAL AMOUNT
UNDERWRITER OF NOTES
----------- ----------------
GOLDMAN, SACHS & CO........................ $93,750,000
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED............................. 93,750,000
J.P. MORGAN SECURITIES, INC................ 93,750,000
MORGAN STANLEY & CO.
INCORPORATED............................... 93,750,000
____________
Total.................................... $375,000,000
============
Exhibit A
Opinion of Maryland Counsel for the Company
The opinion of Piper & Marbury L.L.P., Maryland counsel for
the Company, to be delivered pursuant to Section 7(d) of the Underwriting
Agreement, shall be limited to the laws of the State of Maryland and shall be
to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
under the State of Maryland; and the Company has the corporate
power under the laws of the State of Maryland and under its
charter to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and the
Prospectus;
(ii) each of the Agreement, and the Indenture has been
duly authorized and duly executed by the Company;
(iii) the Securities have been duly authorized and
executed by the Company;
(iv) the execution and delivery of the Agreement, the
Indenture and the Securities, and the consummation of the
transactions contemplated therein, will not result in any
violation of the provisions of the charter or by-laws of the
Company or any material applicable law, administrative regulations
or administrative or court decree applicable to the Company
(except that no opinion need be expressed with respect to Maryland
securities or Blue Sky laws);
(v) the forms of certificates used to evidence the
Securities comply with all applicable statutory requirements; and
(vi) the Company's Restated Articles of Incorporation
filed with the Maryland State Department of Assessments and
Taxation on October 3, 1991 represented on such date the true,
correct and complete articles of incorporation, as amended,
governing the Company.
Exhibit B
Opinion of Counsel for the Company
The opinion of Susan L. Harris, Senior Vice President and
General Counsel--Corporate Affairs of the Company, to be delivered pursuant to
Section 7(d) of the Underwriting Agreement shall be to the effect that:
(i) to the best of such counsel's knowledge and
information, the Company is duly qualified as a foreign
corporation to transact business and 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,
on the earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise;
(ii) the authorized, issued and outstanding capital
stock of the Company is correctly set forth in the Prospectus
under "Description of Capital Stock" as of September 30, 1996;
(iii) each Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation and has the corporate
power and authority to own, lease and operate its properties and
to conduct its business as presently conducted and as described in
the Registration Statement and Prospectus, it being understood
that, as to each Subsidiary the foregoing opinion is based solely
on a certificate dated as of a recent date of an appropriate
official of the jurisdiction of incorporation of such subsidiary
and, as applicable, a letter from CT Corporation System dated as
of a recent date as to the good standing of such Subsidiary in
such jurisdiction, copies of which will be delivered to the
Underwriters on the date of such opinion; nothing has come to the
attention of such counsel to lead such counsel to believe that any
of SunAmerica Life Insurance Company or Anchor National Life
Insurance Company is not duly qualified as a foreign corporation
to transact business or is not in good standing in each
jurisdiction in which such qualification is required, except where
the failure to so qualify or be in good standing would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise; to the best of such
counsel's knowledge and information, all of the issued and
outstanding capital stock of each Subsidiary is owned (except for
directors qualifying shares), directly or through subsidiaries,
by the Company, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity;
(iv) to the best of such counsel's knowledge and
information, the issuance and delivery of the Securities, the
execution and delivery of this Agreement, the Indenture and the
consummation of the transactions contemplated herein and therein,
will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any
of the Subsidiaries pursuant to, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which
the Company or any of the 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,
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 considered as one
enterprise, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company and the
Subsidiaries or any material applicable law, administrative
regulation or administrative or court decree; and, to the best of
such counsel's knowledge and information, no authorization,
consent, or approval of, or other order by, any court or
administrative or governmental authority or agency is required for
the performance by the Company of its obligations under this
Agreement, the Indenture, or for the issuance and sale of the
Securities, except such as may be required by the 1933 Act or the
1933 Act Regulations, the securities or Blue Sky laws or insurance
securities laws of the various states or except such as have been
obtained;
(v) to the best of such counsel's knowledge and
information, there are no statutes or regulations that are
required to be described in the Registration Statement or the
Prospectus that are not described as required and there are no
legal or governmental proceedings pending or threatened which are
required to be described in the Registration Statement or the
Prospectus, other than those disclosed therein;
(vi) to the best of such counsel's knowledge and
information there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be
filed as exhibits thereto, other than those described or referred
to therein or filed as exhibits thereto, the descriptions thereof
or references thereto are correct in all material respects and, to
the best of such counsel's knowledge and information, no default
exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage loan agreement, note, lease or other
instrument so described, referred to or filed, which default could
have a material adverse effect on the Company and its subsidiaries
considered as one enterprise;
(vii) (1) such counsel is of the opinion that each
document, if any, filed pursuant to the 1934 Act and incorporated
by reference in the Prospectus at the time it was filed or last
amended (except for financial statements, supporting schedules and
other financial data included or incorporated by reference
therein, as to which such counsel need not express any opinion)
appeared on its face to be appropriately responsive in all
material respects to the requirements of the 1934 Act and the
applicable rules and regulations of the Commission thereunder, (2)
nothing has come to the attention of such counsel that would lead
such counsel to believe that (except for financial statements,
supporting schedules and other financial data included or
incorporated by reference therein and except for the parts of the
Registration Statement that constitute the Form T-1s, as to which
such counsel need not express any belief) each part of the
Registration Statement, when such part became effective and, as of
the date of this Agreement contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (3) such counsel is of the opinion that the
Registration Statement, as of its effective date, and the
Prospectus, as of the Time of Delivery (except in each case for
financial statements, supporting schedules and other financial
data included or incorporated by reference therein and except
for the parts of the Registration Statement that constitute the
Form T-1s, as to which such counsel need not express any
opinion), appeared on their face to be appropriately responsive
in all material respects to the requirements of the 1933 Act
and the applicable rules and regulations of the Commission
thereunder and (4) nothing has come to the attention of such
counsel that would lead such counsel to believe that (except
for financial statements, supporting schedules and other
financial data included or incorporated by reference therein
and except for the parts of the Registration Statement that
constitute the Form T-1s, as to which such counsel need not
express any belief) the Prospectus as of the date such opinion
is delivered contains an untrue statement of a material fact 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; and
(viii) the Registration Statement is effective under the
1933 Act, and to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act, and no
proceedings for such purpose are pending before or threatened by
the Commission.
With respect to the foregoing paragraph (vii), such counsel
may state that her opinion and belief are based upon her participation in the
preparation of the Registration Statement and Prospectus and any amendments,
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified.
Exhibit C
Opinion of Special Counsel for the Company
The opinion of Davis Polk & Wardwell, special counsel to the
Company, to be delivered pursuant to Section 7(d) of the Underwriting
Agreement, shall be to the effect that:
(i) The statements in the Prospectus under the captions
"Description of the Notes," and "Description of the Senior Debt
Securities and Subordinated Debt Securities" insofar as such
statements constitute summaries of the legal matters or documents
referred to therein, fairly summarize, in all material respects,
such legal matters or documents.
(ii) Nothing has come to the attention of such counsel
that would lead such counsel to believe that (except for financial
statements, supporting schedules and other financial data included
or incorporated by reference therein and except for those parts of
the Registration Statement that constitute the Forms T-1s, as to
which such counsel need not express any belief) each part of the
Registration Statement, when such part became effective and as of
the date of this Agreement contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (2) such counsel is of the opinion that the
Registration Statement as of its effective date and the Prospectus
as of the date of such opinion (except for financial statements,
supporting schedules and other financial data included or
incorporated by reference therein and except for those parts of
the Registration Statement that constitute the Forms T-1s as to
which such counsel need not express any opinion) appeared on their
face to be appropriately responsive in all material respects to
the requirements of the 1933 Act and the applicable rules and
regulations of the Commission thereunder and (3) nothing has come
to the attention of such counsel that would lead such counsel to
believe that (except for financial statements, supporting
schedules and other financial data included or incorporated by
reference therein and except for those parts of the Registration
Statement that constitute the Forms T-1s and, as to which such
counsel need not express any belief) the Prospectus as of the date
such opinion is delivered contains any untrue statement of a
material fact 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.
(iii) The Senior Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended; the Registration
Statement is effective under the 1933 Act and, to the best of such
counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933 Act, and
no proceedings for such purpose are pending before or threatened
by the Commission.
(iv) The Company is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(v) To the best of such counsel's knowledge and
information, no authorization, consent or approval of, or other
order by, any New York State or federal court or New York State or
federal administrative or governmental authority or agency is
required for the issuance and sale of the Securities, except such
as may be required under the 1933 Act, the 1934 Act or by the
securities or Blue Sky laws or insurance securities laws of the
various states or except such as have been obtained.
(vi) Assuming that each of the Indenture, and the Securities
have been duly authorized, executed and delivered by the Company
under Maryland law, each is a valid and legally binding agreement
of the Company enforceable against the Company in accordance with
its terms (and, in the case of the Securities, entitled to the
benefits of the Indenture), except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability
(regardless of whether considered in a proceeding at law or in
equity);
With respect to the opinion set forth in paragraph (ii),
such counsel may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendments or supplements thereto (other than the documents
incorporated by reference) and upon review and discussion of the contents
thereof (including documents incorporated by reference) but are without
independent check or verification, except as specified.
EXHIBIT 1.4
SunAmerica Inc.
$56,250,000
6.20% Notes due October 31, 1999, Series 2
UNDERWRITING AGREEMENT
November 4, 1996
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Sirs:
SunAmerica Inc., a Maryland corporation (the "Company"),
confirms its agreement to sell, subject to the terms and conditions stated
herein, to the several Underwriters named in Schedule I hereto (the
"Underwriters") $56,250,000 principal amount of 6.20% Notes due October 31,
1999, Series 2 (the "Securities") of the Company. The Securities will be
issued pursuant to the provisions of a Senior Indenture (the "Senior
Indenture"), dated as of April 15, 1993, as supplemented by indenture
supplements dated June 28, 1993 and October 28, 1996 (collectively with the
Senior Indenture the "Indenture"), between the Company and The First National
Bank of Chicago, as Trustee (the "Trustee").
SunAmerica Capital Trust III, SunAmerica Capital Trust IV,
SunAmerica Capital Trust V and SunAmerica Capital Trust VI (collectively, the
"SunAmerica Trusts") and the Company have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(Nos. 333-14201, 333-14201-01, 333-14201-02, 333-14201-03 and 333-14201-04)
and pre-effective Amendment Nos. 1 and 2 thereto, including a prospectus,
covering the registration of securities of the Company and the SunAmerica
Trusts (including the Securities) 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 Commission under the 1933
Act (the "1933 Act Regulations"). Such registration statement, as so amended,
has been declared effective by the Commission. Such registration statement,
as so amended, including the exhibits thereto and the information, if any,
deemed to be a part thereof pursuant to Rule 430A(b) of the 1933 Act
Regulations (the "Rule 430A Information") is referred to herein as the
"Registration Statement;" and the final prospectus and the prospectus
supplement relating to the offering of the Securities, in the form first
furnished to the Underwriters by the Company for confirming sales of the
Securities, are collectively referred to herein as the "Prospectus;" provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall be deemed to include all documents incorporated therein by
reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of this Agreement; provided, further, that
if the Company files a registration statement with the Commission pursuant to
Section 462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration
Statement"), then after such filing, all references to "Registration
Statement" shall be deemed to include the Rule 462(b) Registration Statement.
As used herein, the term "preliminary prospectus" shall be deemed to refer to
the preliminary prospectus supplement specifically relating to the Securities
and the prospectus used before the registration statement became effective.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
in the Registration Statement, any preliminary prospectus or the Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be.
1. Representations and Warranties. (a) The Company
represents and warrants to each of the Underwriters as follows:
(i) The Registration Statement (including the most
recent post-effective amendment thereto, if any) has been declared
effective by the Commission; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(ii) (a) Each document filed or to be filed
pursuant to the 1934 Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material
respects with the 1934 Act and the applicable rules and regulations
of the Commission thereunder, (b) each part of the Registration
Statement, when such part became effective, did not contain, and each
such part, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Registration Statement,
since the later of the date it became effective and the date of the
most recent post-effective amendment, if any, will not fail to reflect
any facts or events which individually or in the aggregate represent
a fundamental change in the information set forth in the Registration
Statement as of such date, (c) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable,
will comply in all material respects with the 1933 Act and the
applicable 1933 Act Regulations and (d) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this
Section 1(ii) do not apply to (A) statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), of the trustee thereunder.
(iii) This Agreement and the transactions
contemplated hereby have been duly authorized, and this Agreement has
been duly executed and delivered by the Company.
(iv) The Senior Indenture has been duly qualified
under the Trust Indenture Act and the Indenture 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, reorganization, fraudulent transfer,
moratorium and other similar laws now or hereafter in effect relating
to or affecting creditors' rights generally and (ii) 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).
(v) The Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be 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, reorganization, fraudulent transfer, moratorium and other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (ii) 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).
(vi) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Maryland, with corporate power and authority to own,
lease and operate its properties and to conduct its business as
presently conducted and as described in the Registration Statement
and Prospectus; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise.
(vii) Each of SunAmerica Life Insurance Company,
Anchor National Life Insurance Company, Resources Trust Company and
Ford Life Insurance Company (together, the "Subsidiaries") has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as
described in the Registration Statement and Prospectus, and is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to so qualify or
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries, considered as one
enterprise; and all of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and validly issued, is fully
paid and nonassessable and is owned (except for directors qualifying
shares) directly or through subsidiaries, by the Company, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(viii) The authorized, issued and outstanding
capital stock of the Company is as set forth in the Registration
Statement and Prospectus (except for subsequent issuances, if any,
pursuant to reservations, stock option agreements, employee benefit
plans or the exercise of convertible securities which may be referred
to in the Registration Statement and Prospectus); all of the issued
and outstanding shares of capital stock have been duly authorized and
validly issued and are fully paid, nonassessable and not subject to
any preemptive or similar rights.
(ix) None of the Company nor any of the
Subsidiaries is in violation of its respective charter or bylaws, as
applicable, or in default in the performance of any material
obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company or any of the Subsidiaries
is a party or by which any of them may be bound, or to which any of
the property or assets of the Company or of any of the Subsidiaries
is subject, or in violation of any applicable law, administrative
regulation or administrative or court order or decree, which
violation or default would, singly or in the aggregate, have a
material adverse effect on the condition, financial or otherwise, or
the earnings or business affairs of the Company and its subsidiaries,
considered as one enterprise; and the execution and delivery by the
Company of, and the performance by the Company of its obligations
under, this Agreement, the Indenture and the Securities and the
issuance and sale of the Securities will not conflict with or
constitute a breach of, or a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Subsidiaries pursuant to, any
material contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company or any of the Subsidiaries
is a party or by which any of them may be bound, or to which any of
the property or assets of the Company or any of the Subsidiaries is
subject, except for a conflict, breach, default, lien, charge or
encumbrance which would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries considered as one
enterprise, nor will such action result in any violation of the
provisions of the articles of incorporation or bylaws of the Company
or any of the Subsidiaries or any applicable law, administrative
regulation or administrative or court decree; 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 Securities, or the issuance and sale of the Securities, except
such as may be required by the securities or Blue Sky laws or
insurance securities laws of the various states in connection with
the offer and sale of the Securities or such as have been
obtained.
(x) There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or which are reasonably likely to
result in any 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, or which would be
reasonably likely to materially and adversely affect a material
portion of the properties or assets thereof or which is reasonably
likely to materially and adversely affect the consummation of this
Agreement, the Indenture or the Securities or the transactions
contemplated hereby or thereby; 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; and there are no contracts or
documents that are required to be filed as exhibits to the
Registration Statement, by the 1933 Act, the 1933 Act Regulations,
the 1934 Act or the 1934 Act Regulations thereunder that have not
been filed as required, except that by the Time of Delivery (as
defined herein) the Company will file on Form 8-K this Agreement and
certain other agreements relating to the Securities and the
transactions contemplated hereby.
(xi) The accountants who certified the financial
statements and supporting schedules included or incorporated by
reference in the Registration Statement and Prospectus are
independent public accountants with respect to the Company and the
subsidiaries of the Company as required by the 1933 Act and the 1933
Act Regulations promulgated thereunder.
(xii) The financial statements of the Company
included or incorporated by reference in the Registration Statement
or Prospectus present fairly the financial position of the Company
and the consolidated subsidiaries of the Company as of the dates
indicated and the results of their operations for the periods
specified; except as otherwise stated in the Registration Statement
and Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis; the ratios of earnings to fixed charges and
earnings to combined fixed charges (including preferred stock
dividends) included in the Registration Statement or Prospectus have
been calculated in compliance with Item 503(d) of Regulation S-K of
the Commission; and the supporting schedules included or incorporated
by reference in the Registration Statement or Prospectus present
fairly the information required to be included therein.
(xiii) Since the respective dates as of which
information is given in the Registration Statement and 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
its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (b) there have been no
transactions entered into by the Company or any of its subsidiaries
which are material to the Company and its subsidiaries, considered as
one enterprise, other than those entered into in the ordinary course
of business and (c) except for regular quarterly dividends on common
stock of the Company, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock.
(xiv) The Company and the Subsidiaries possess
such certificates, authorizations or permits issued by the
appropriate state or federal regulatory agencies or bodies as are
necessary to conduct the business as now conducted by them and as
described in the Registration Statement or Prospectus, except where
the failure to so possess such certificates, authorizations or
permits would not have a material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise; 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, considered as one
enterprise.
(xv) There are no holders of securities of the
Company with currently exercisable registration rights to have any
securities registered as part of the Registration Statement or
included in the offering contemplated by this Agreement.
(xvi) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(xvii) The Securities conform in all material
respects to all statements relating to the Securities contained in
the Prospectus and the Registration Statement.
(xviii) No "forward looking statement" (as defined
in Rule 175 under the Act) contained in the Registration Statement,
any Preliminary Prospectus or the Prospectus was made or reaffirmed
without a reasonable basis or was disclosed other than in good faith.
(xix) The Company recognizes and acknowledges for
all purposes of this Agreement that the only information relating to
any Underwriter furnished to the Company in writing by the
Underwriters expressly for use in the Registration Statement or the
Prospectus consists of the last paragraph on the cover page of the
Prospectus Supplement, and the names of the Underwriters and the
second sentence of the fourth paragraph and the entire third
paragraph under the caption "Underwriting" in the Prospectus
Supplement.
2. Public Offering. The Company is advised by the
Underwriters that the Underwriters propose to make a public offering of their
respective portions of the Securities as soon after this Agreement has been
entered into as in the Underwriters' judgment is advisable. The terms of the
public offering of the Securities are set forth in the Prospectus.
3. Purchase and Sale. Subject to the terms and conditions
herein set forth, the Company agrees to sell to the Underwriters, and each of
the Underwriters, severally and not jointly, agrees to purchase the Securities
set forth opposite the name of such Underwriter in Schedule I hereto.
4. Purchase and Delivery. Certificates in definitive or
temporary form for the Securities to be purchased by the Underwriters
hereunder, and in such denominations and registered in such names as Goldman,
Sachs & Co. ("Goldman") may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to
you against the delivery to the Company, by wire transfer of same day funds to
the account designated in writing by the Company, of the purchase price for
the Securities. The purchase price payable by the Underwriters for the
Securities shall be 99.567% of the principal amount thereof. The time and
date of such delivery and payment shall be 9:30 a.m., New York time, on
November 6, 1996, or such other time and date as you and the Company may agree
upon in writing. Such time and date for delivery of the Securities is herein
called the "Time of Delivery." Unless otherwise instructed by Goldman in the
request referred to above, such certificates will be made available for
checking and packaging at least twenty-four hours prior to the Time of
Delivery at the offices of Goldman in New York set forth on the first page
hereof.
5. Covenants of the Company. In further consideration of
the agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Underwriters, without charge, a conformed
copy of the Registration Statement (including exhibits thereto) and, prior to
5:00 p.m. New York City time on the Business Day next succeeding this
Agreement during the period mentioned in paragraph (c) below, as many copies
of the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement, as the
Underwriters may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Securities, to furnish to the
Underwriters a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Underwriters
reasonably object.
(c) If, during such period after the first date of the public
offering of the Securities as the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, any event
shall occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, forthwith to prepare, file with the Commission and furnish,
at its own expense, to the Underwriters, and to the dealers (whose names and
addresses the Underwriters will furnish to the Company) to which Securities
may have been sold by the Underwriters and to any other dealer upon request,
either amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading
or so that the Prospectus, as so amended or supplemented, will comply with law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws or insurance securities laws of such
jurisdictions as the Underwriters shall reasonably request and to pay all
expenses (including fees and disbursements of counsel) in connection with such
qualification and in connection with any review of the offering of the
Securities by the National Association of Securities Dealers, Inc., if any.
(e) To make generally available to the Company's security
holders and to the Underwriters as soon as practicable an earnings statement
covering a twelve-month period beginning on the first day of the first full
fiscal quarter after the date of this Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the 1933 Act and the 1933 Act
Regulations.
(f) During the period mentioned in paragraph (c) above, to
advise the Underwriters promptly of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose.
(g) Not to, and to cause its subsidiaries not to, without the
prior written consent of the Underwriters, directly or indirectly, prior to
the First Time of Delivery, sell, offer to sell, grant any option for the sale
of, or otherwise dispose of, or enter into any agreement to sell, any
Securities, or any securities of the Company substantially similar to the
Securities or any securities convertible into or exchangeable or exercisable
for any Securities or substantially similar securities; provided, however, that
such restrictions shall not affect the ability of the Company or its
subsidiaries to take any such action (i) as a consequence of obligations under
securities outstanding prior to the date of the Prospectus, (ii) in connection
with any employee benefit or incentive plan of the Company or its subsidiaries
or (iii) in connection with the offering of the Securities.
6. Expenses. The Company will pay (i) all expenses incident
to the performance of its obligations under this Agreement, (ii) the expenses
of printing all documents relating to the offering and of the mailing and
delivering of copies thereof to the Underwriters and (iii) any fees charged by
investment rating agencies for rating the Securities.
7. Conditions to Closing. The obligations of the
Underwriters hereunder, as to the Securities to be delivered at the Time of
Delivery, shall be subject to the condition that all representations and
warranties and other statements of the Company herein are, at and as of the
Time of Delivery, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of this
Agreement and prior to the Time of Delivery, there shall not have occurred any
material adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations, of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus.
(c) The Underwriters shall have received on the Time of
Delivery a certificate, dated the Time of Delivery and signed by an executive
officer of the Company, to the effect set forth in clauses (a) and (b) above
and to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Time of Delivery
and that the Company has complied with all of the agreements and satisfied all
of the obligations on its part to be performed or satisfied on or before the
Time of Delivery.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Time of
Delivery opinions of Piper & Marbury L.L.P., Maryland counsel to the Company,
Susan L. Harris, Esq., Senior Vice President and General Counsel--Corporate
Affairs for the Company, and Davis Polk & Wardwell, special counsel to the
Company, dated the Closing Date, to the effect set forth in Exhibits A, B and
C, respectively. In giving such opinion, Ms. Harris may rely, as to matters
governed by laws other than the laws of the State of California and the
federal law of the United States of America, on an opinion or opinions of
Davis Polk & Wardwell and Piper & Marbury L.L.P., and Davis Polk & Wardwell
may rely, as to matters governed by laws other than the laws of the State of
New York and the federal law of the United States of America, on an opinion of
Piper & Marbury L.L.P., in each case so long as such opinion shall be dated
the Time of Delivery and in form and substance satisfactory to the
Underwriters, and shall expressly permit the Underwriters to rely thereon as
if such opinion were addressed to the Underwriters.
(e) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Underwriters, shall have furnished to you such opinion or opinions, dated such
Time of Delivery, as you may reasonably request, and the Company shall have
furnished to such counsel such documents as they may request for the purpose
of enabling them to pass upon such matters.
(f) The Underwriters shall have received on the date hereof
and the Time of Delivery a letter, dated the date hereof or the Time of
Delivery, respectively, in form and substance satisfactory to the
Underwriters, from the Company's independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters in accordance with AICPA standards, with
respect to the financial statements and certain financial information
contained in or incorporated by reference into the Prospectus.
(g) On the Time of Delivery, (i) the Securities shall have a
rating of at least "Baa1" from Moody's Investors Service, Inc. and at least
"A" from Standard & Poor's Corporation as evidenced in a letter from such
rating agencies or by other evidence satisfactory to the Underwriters and (ii)
no securities of the Company shall have been downgraded or placed on any
"watch list" for possible downgrading by any nationally recognized statistical
rating organization and the Company shall have delivered to the Underwriters a
letter from such rating agency (or other evidence satisfactory to the
Underwriters), confirming that the Securities have such ratings.
8. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the 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 or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such
action or claim), caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information furnished to the Company by such Underwriter in writing
expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting such losses, claims,
damages or liabilities purchased Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented, if
the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to such purchase,
and if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities. This
indemnity will be in addition to any liability which the Company may
otherwise have.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only to the extent that any untrue statement or omission
or alleged untrue statement or omission was made in reliance upon and in
conformity with information furnished to the Company by any Underwriter in
writing expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto. This
indemnity will be in addition to any liability which the Underwriters may
otherwise have.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by Goldman, in
the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first or second
paragraph in this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of the Securities (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus Supplement, bears to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and of the
Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective principal amount of Securities purchased by each of such
Underwriters and not joint.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 8 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 8 and the representations and warranties of the Company contained
herein shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its directors or officers or any person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
9. Termination. This Agreement shall be subject to
termination, by notice given by the Underwriters to the Company, if (a) after
the execution and delivery of this Agreement and prior to the Time of Delivery
(i) trading generally shall have been suspended or materially limited on or
by, as the case may be, the New York Stock Exchange or the American Stock
Exchange, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Representatives, is material and adverse, or (iv) a general moratorium on
commercial banking activities in New York shall have been declared by either
federal or New York State authorities, and (b) in the case of any of the
events specified in clauses (a)(i) through (iv), such event, singly or
together with any other such event, makes it, in the judgment of any of the
Underwriters, impracticable to market the Securities on the terms and in the
manner contemplated in the Prospectus.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Securities. Nothing in
the foregoing sentence shall limit the Company's obligations to pay expenses
as provided in Section 6.
10. Defaulting Underwriters. If, on the Time of Delivery,
any Underwriter or Underwriters shall fail or refuse to purchase Securities to
be purchased on such date and the aggregate number of Securities with respect
to which such default occurs is more than one-tenth of the aggregate number of
Securities to be purchased on such date, and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Representatives or the Company shall
have the right to postpone the Time of Delivery but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may
be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
11. Notices. In all dealings hereunder, the parties hereto
shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by Goldman on behalf of
the Underwriters.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail to Goldman Sachs & Co., 85 Broad Street, New York, New York 10004,
Attention: Izzy Goncalves; and if to the Company shall be delivered or sent
by mail or facsimile transmission to it at SunAmerica Inc., 1 SunAmerica
Center, 1999 Avenue of the Stars, Century City, Los Angeles, California
90067-6022; Attention: Susan Harris. Any such statements, requests, notices
or agreements shall take effect upon receipt thereof.
12. Parties. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters and the Company and, to the extent
provided in Sections 8 hereof, the officers and directors of the Company and
each person who controls the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. Counterparts. This Agreement may be executed by any one
or more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
15. Acknowledgment. The Company and the Underwriters
acknowledge that Davis Polk & Wardwell, which is acting as special counsel to
the Company in connection with the offer and sale of the Securities, also acts
as counsel from time to time to one or more of the Underwriters in connection
with unrelated matters. The Company and the Underwriters consent to Davis
Polk & Wardwell so acting as special counsel to the Company. The Company and
the Underwriters also acknowledge that Skadden, Arps, Slate, Meagher & Flom
LLP, which is acting as counsel to the Underwriters in connection with the
offer and sale of the Securities, also acts as counsel from time to time to
the Company and certain of its affiliates in connection with unrelated
matters. The Company and the Underwriters consent to Skadden, Arps, Slate,
Meagher & Flom LLP so acting as counsel to the Underwriters.
16. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
SUNAMERICA INC.
By: /s/ James Belardi
---------------------------
Name: James Belardi
Title: Exec. Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
GOLDMAN, SACHS & CO.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
By: Goldman, Sachs & Co.
By: /s/ Goldman, Sachs & Co.
------------------------
SCHEDULE I
PRINCIPAL AMOUNT
UNDERWRITER OF NOTES
----------- ----------------
GOLDMAN, SACHS & CO.................................. $14,100,000
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED............................. 14,050,000
J.P. MORGAN SECURITIES, INC.......................... 14,050,000
MORGAN STANLEY & CO.
INCORPORATED......................................... 14,050,000
___________
Total.............................................. $56,250,000
===========
Exhibit A
Opinion of Maryland Counsel for the Company
The opinion of Piper & Marbury L.L.P., Maryland counsel for
the Company, to be delivered pursuant to Section 7(d) of the Underwriting
Agreement, shall be limited to the laws of the State of Maryland and shall be
to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
under the State of Maryland; and the Company has the corporate
power under the laws of the State of Maryland and under its
charter to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and the
Prospectus;
(ii) each of the Agreement, and the Indenture has been
duly authorized and duly executed by the Company;
(iii) the Securities have been duly authorized and
executed by the Company;
(iv) the execution and delivery of the Agreement, the
Indenture and the Securities, and the consummation of the
transactions contemplated therein, will not result in any
violation of the provisions of the charter or by-laws of the
Company or any material applicable law, administrative regulations
or administrative or court decree applicable to the Company
(except that no opinion need be expressed with respect to Maryland
securities or Blue Sky laws);
(v) the forms of certificates used to evidence the
Securities comply with all applicable statutory requirements; and
(vi) the Company's Restated Articles of Incorporation
filed with the Maryland State Department of Assessments and
Taxation on October 3, 1991 represented on such date the true,
correct and complete articles of incorporation, as amended,
governing the Company.
Exhibit B
Opinion of Counsel for the Company
The opinion of Susan L. Harris, Senior Vice President and
General Counsel--Corporate Affairs of the Company, to be delivered pursuant to
Section 7(d) of the Underwriting Agreement shall be to the effect that:
(i) to the best of such counsel's knowledge and
information, the Company is duly qualified as a foreign
corporation to transact business and 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,
on the earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise;
(ii) the authorized, issued and outstanding capital
stock of the Company is correctly set forth in the Prospectus
under "Description of Capital Stock" as of September 30, 1996;
(iii) each Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation and has the corporate
power and authority to own, lease and operate its properties and
to conduct its business as presently conducted and as described in
the Registration Statement and Prospectus, it being understood
that, as to each Subsidiary the foregoing opinion is based solely
on a certificate dated as of a recent date of an appropriate
official of the jurisdiction of incorporation of such subsidiary
and, as applicable, a letter from CT Corporation System dated as of
a recent date as to the good standing of such Subsidiary in such
jurisdiction, copies of which will be delivered to the
Underwriters on the date of such opinion; nothing has come to the
attention of such counsel to lead such counsel to believe that any
of SunAmerica Life Insurance Company or Anchor National Life
Insurance Company is not duly qualified as a foreign corporation
to transact business or is not in good standing in each
jurisdiction in which such qualification is required, except where
the failure to so qualify or be in good standing would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise; to the best of such
counsel's knowledge and information, all of the issued and
outstanding capital stock of each Subsidiary is owned (except for
directors qualifying shares), directly or through subsidiaries,
by the Company, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity;
(iv) to the best of such counsel's knowledge and
information, the issuance and delivery of the Securities, the
execution and delivery of this Agreement, the Indenture and the
consummation of the transactions contemplated herein and therein,
will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any
of the Subsidiaries pursuant to, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which
the Company or any of the 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,
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 considered as one
enterprise, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company and the
Subsidiaries or any material applicable law, administrative
regulation or administrative or court decree; and, to the best of
such counsel's knowledge and information, no authorization,
consent, or approval of, or other order by, any court or
administrative or governmental authority or agency is required for
the performance by the Company of its obligations under this
Agreement, the Indenture, or for the issuance and sale of the
Securities, except such as may be required by the 1933 Act or the
1933 Act Regulations, the securities or Blue Sky laws or insurance
securities laws of the various states or except such as have been
obtained;
(v) to the best of such counsel's knowledge and
information, there are no statutes or regulations that are
required to be described in the Registration Statement or the
Prospectus that are not described as required and there are no
legal or governmental proceedings pending or threatened which are
required to be described in the Registration Statement or the
Prospectus, other than those disclosed therein;
(vi) to the best of such counsel's knowledge and
information there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be
filed as exhibits thereto, other than those described or referred
to therein or filed as exhibits thereto, the descriptions thereof
or references thereto are correct in all material respects and, to
the best of such counsel's knowledge and information, no default
exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage loan agreement, note, lease or other
instrument so described, referred to or filed, which default could
have a material adverse effect on the Company and its subsidiaries
considered as one enterprise;
(vii) (1) such counsel is of the opinion that each
document, if any, filed pursuant to the 1934 Act and incorporated
by reference in the Prospectus at the time it was filed or last
amended (except for financial statements, supporting schedules and
other financial data included or incorporated by reference
therein, as to which such counsel need not express any opinion)
appeared on its face to be appropriately responsive in all
material respects to the requirements of the 1934 Act and the
applicable rules and regulations of the Commission thereunder, (2)
nothing has come to the attention of such counsel that would lead
such counsel to believe that (except for financial statements,
supporting schedules and other financial data included or
incorporated by reference therein and except for the parts of the
Registration Statement that constitute the Form T-1s, as to which
such counsel need not express any belief) each part of the
Registration Statement, when such part became effective and, as of
the date of this Agreement contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (3) such counsel is of the opinion that the
Registration Statement, as of its effective date, and the
Prospectus, as of the Time of Delivery (except in each case for
financial statements, supporting schedules and other financial data
included or incorporated by reference therein and except for the
parts of the Registration Statement that constitute the Form T-1s,
as to which such counsel need not express any opinion), appeared
on their face to be appropriately responsive in all material
respects to the requirements of the 1933 Act and the applicable
rules and regulations of the Commission thereunder and (4) nothing
has come to the attention of such counsel that would lead such
counsel to believe that (except for financial statements,
supporting schedules and other financial data included or
incorporated by reference therein and except for the parts of the
Registration Statement that constitute the Form T-1s, as to which
such counsel need not express any belief) the Prospectus as of the
date such opinion is delivered contains an untrue statement of a
material fact 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; and
(viii) the Registration Statement is effective under the
1933 Act, and to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act, and no
proceedings for such purpose are pending before or threatened by
the Commission.
With respect to the foregoing paragraph (vii), such counsel
may state that her opinion and belief are based upon her participation in the
preparation of the Registration Statement and Prospectus and any amendments,
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified.
Exhibit C
Opinion of Special Counsel for the Company
The opinion of Davis Polk & Wardwell, special counsel to the
Company, to be delivered pursuant to Section 7(d) of the Underwriting
Agreement, shall be to the effect that:
(i) The statements in the Prospectus under the captions
"Description of the Notes," and "Description of the Senior Debt
Securities and Subordinated Debt Securities" insofar as such
statements constitute summaries of the legal matters or documents
referred to therein, fairly summarize, in all material respects,
such legal matters or documents.
(ii) Nothing has come to the attention of such counsel
that would lead such counsel to believe that (except for financial
statements, supporting schedules and other financial data included
or incorporated by reference therein and except for those parts of
the Registration Statement that constitute the Forms T-1s, as to
which such counsel need not express any belief) each part of the
Registration Statement, when such part became effective and as of
the date of this Agreement contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (2) such counsel is of the opinion that the
Registration Statement as of its effective date and the Prospectus
as of the date of such opinion (except for financial statements,
supporting schedules and other financial data included or
incorporated by reference therein and except for those parts of
the Registration Statement that constitute the Forms T-1s as to
which such counsel need not express any opinion) appeared on their
face to be appropriately responsive in all material respects to
the requirements of the 1933 Act and the applicable rules and
regulations of the Commission thereunder and (3) nothing has come
to the attention of such counsel that would lead such counsel to
believe that (except for financial statements, supporting
schedules and other financial data included or incorporated by
reference therein and except for those parts of the Registration
Statement that constitute the Forms T-1s and, as to which such
counsel need not express any belief) the Prospectus as of the date
such opinion is delivered contains any untrue statement of a
material fact 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.
(iii) The Senior Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended; the Registration
Statement is effective under the 1933 Act and, to the best of such
counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933 Act, and
no proceedings for such purpose are pending before or threatened
by the Commission.
(iv) The Company is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(v) To the best of such counsel's knowledge and
information, no authorization, consent or approval of, or other
order by, any New York State or federal court or New York State or
federal administrative or governmental authority or agency is
required for the issuance and sale of the Securities, except such
as may be required under the 1933 Act, the 1934 Act or by the
securities or Blue Sky laws or insurance securities laws of the
various states or except such as have been obtained.
(vi) Assuming that each of the Indenture, and the Securities
have been duly authorized, executed and delivered by the Company
under Maryland law, each is a valid and legally binding agreement
of the Company enforceable against the Company in accordance with
its terms (and, in the case of the Securities, entitled to the
benefits of the Indenture), except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability
(regardless of whether considered in a proceeding at law or in
equity);
With respect to the opinion set forth in paragraph (ii),
such counsel may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendments or supplements thereto (other than the documents
incorporated by reference) and upon review and discussion of the contents
thereof (including documents incorporated by reference) but are without
independent check or verification, except as specified.
EXHIBIT 4.1
FORM OF NOTE
FRONT SIDE OF NOTE
SUNAMERICA INC.
6.20% Note Due October 31, 1999
Number
R__________ CUSIP 866930 AA8
Unless and until this certificate is exchange 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).
SUNAMERICA INC., a Maryland corporation (the "Issuer", which term
includes any successor corporation under the Senior Indenture hereafter
referred to), for value received, hereby promises to pay to Cede & Co. or
registered assigns, at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, or at such other locations as the Issuer may
from time to time designate, the principal sum of THREE HUNDRED AND SEVENTY
FIVE MILLION DOLLARS on October 31, 1999, in such coin or currency of the
United States of America as at the time of payment shall be legal tender for
the payment of public and private debts, and to pay interest, semi-annually on
April 30 and October 31 of each year, commencing April 30, 1997, on said
principal sum at said office or agency, in like coin or currency, at the rate
per annum specified in the title of this Note, from the April 30 or the
October 31, as the case may be, next preceding the date of this Note to which
interest has been paid or duly provided for, unless the date hereof is a date
to which interest has been paid or duly provided for, in which case from the
date of this Note, or unless no interest has been paid on this Note or duly
provided for, in which case from November 6, 1996, until payment of said
principal sum has been made or duly provided for; provided, that payment of
interest may be made at the option of the Issuer by check mailed by first
class mail to the address of the person entitled thereto as such address shall
appear on the Security register. Notwithstanding the foregoing, if the date
hereof is after April 15 or October 15 as the case may be, and before the
following April 30 or October 31, this Note shall bear interest from such
April 30 or October 31; provided, that if the Issuer shall default in the
payment of interest due on such April 30 or October 31, then this Note shall
bear interest from the next preceding April 30 or October 31, to which
interest has been paid or duly provided for or, if no interest has been paid
on this Note or duly provided for, from November 6, 1996. The interest so
payable on any April 30 or October 31, will, subject to certain exceptions
provided in the Senior Indenture referred to on the reverse hereof, be paid
to the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the April 15 or October 15 (whether or
not a Business Day), as the case may be, next preceding such April 30 or
October 31.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been executed by the
Trustee under the Senior Indenture referred to on the reverse hereof by manual
signature.
IN WITNESS WHEREOF, SunAmerica Inc. has caused this instrument to be
signed by facsimile by one of its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
TRUSTEE'S CERTIFICATE SUNAMERICA INC.
OF AUTHENTICATION
This is one of the Securities
referred to in the within-mentioned
Senior Indenture.
THE FIRST NATIONAL BANK
OF CHICAGO,
as Trustee
AUTHORIZED SIGNATORY _________________________________
CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
[REVERSE OF NOTE]
SUNAMERICA INC.
6.20% Note Due October 31, 1999
This Note is one of a duly authorized issue of debentures, notes, bonds
or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to a Senior Indenture dated as of April 15, 1993, as
amended by indenture supplement dated June 28, 1993 and October 31, 1996
(herein called the "Senior Indenture"), duly executed and delivered by the
Issuer to The First National Bank of Chicago, as Trustee (herein called the
"Trustee"), to which Senior Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Issuer and the Holders of the Securities. The Securities may be issued in one
or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest (if any)
at different rates, may be subject to different redemption provisions (if any)
and may otherwise vary as provided in the Senior Indenture. This Note is one
of a series designated as the 6.20% Notes due 1999 (the "Notes") of the
Issuer, limited in aggregate principal amount to $375,000,000.
Except as otherwise provided in the Senior 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 Senior 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.
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal hereof may be declared, and upon
such declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions provided in the Senior Indenture.
The Senior 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
Senior 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 Senior 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 Senior
Indenture, the consent of the Holders of which is required for any such
modification. It is also provided in the Senior 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 of Default and its consequences. The preceding sentence
shall not, however, apply to a default in the payment of the principal or
interest on any of the Securities. Any such consent or waiver by the
Holder of this Note (unless revoked as provided in the Senior 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 hereof 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 Senior Indenture and no provision of this
Note or of the Senior Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note in the manner, at the respective times, at the rate and
in the coin or currency herein prescribed.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof at the office or
agency of the Issuer in the Borough of Manhattan, The City of New York, or at
such other locations as the Issuer may from time to time designate, and in the
manner and subject to the limitations provided in the Senior Indenture, but
without the payment of any service charge, Notes may be exchanged for a like
aggregate principal amount of Notes of other authorized denominations.
The Notes are not redeemable or repayable prior to maturity and are not
entitled to any sinking fund.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Issuer in the Borough of Manhattan, The City of New
York, or at such other locations as the Issuer may from time to time
designate, a new Note or Notes of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Senior Indenture, without
charge except for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the registered Holder hereof as the absolute owner
of this Note (whether or not this Note shall be overdue and notwithstanding
any notation of ownership or other writing hereon), for the purpose of
receiving payment of, or on account of, the principal hereof and subject to
the provisions on the face hereof, interest hereon, and for all other
purposes, and none of the Issuer, the Trustee or any authorized agent of the
Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Senior Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholders, officer or director, as
such, of the Issuer or of any successor corporation, either directly or
through the Issuer or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
Terms used herein which are defined in the Senior Indenture shall have
the respective meanings assigned thereto in the Senior Indenture.
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______
TEN ENT - as tenants by the (Cust) (Minor)
entireties
JT TEN - as joint tenants Under Uniform Gifts to Minors
with right of Act_______________________________
survivorship and not (State)
as tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE OF ASSIGNEE
- ------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated:___________________ Signed: _______________________________________
NOTICE: The signature to this assignment must
correspond with the name as written
upon the face of the within Note in
every particular without attention or
enlargement or any change whatsoever.
Signature Guarantee:
_________________________
EXHIBIT 4.2
FORM OF NOTE
FRONT SIDE OF NOTE
SUNAMERICA INC.
6.20% Note Due October 31, 1999, Series 2
Number
R__________ CUSIP 866930 AF7
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 Depositary 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).
SUNAMERICA INC., a Maryland corporation (the "Issuer", which term
includes any successor corporation under the Senior Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or
registered assigns, at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, or at such other locations as the Issuer may
from time to time designate, the principal sum of FIFTY SIX MILLION TWO
HUNDRED AND FIFTY THOUSAND DOLLARS on October 31, 1999, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest,
semi-annually on April 30 and October 31 of each year, commencing April 30,
1997, on said principal sum at said office or agency, in like coin or
currency, at the rate per annum specified in the title of this Note, from the
April 30 or the October 31, as the case may be, next preceding the date of
this Note to which interest has been paid or duly provided for, unless the
date hereof is a date to which interest has been paid or duly provided for, in
which case from the date of this Note, or unless no interest has been paid on
this Note or duly provided for, in which case from November 6, 1996, until
payment of said principal sum has been made or duly provided for; provided,
that payment of interest may be made at the option of the Issuer by check
mailed by first class mail to the address of the person entitled thereto as
such address shall appear on the Security register. Notwithstanding the
foregoing, if the date hereof is after April 15 or October 15 as the case may
be, and before the following April 30 or October 31, this Note shall bear
interest from such April 30 or October 31; provided, that if the Issuer shall
default in the payment of interest due on such April 30 or October 31, then
this Note shall bear interest from the next preceding April 30 or October 31,
to which interest has been paid or duly provided for or, if no interest has
been paid on this Note or duly provided for, from November 6, 1996. The
interest so payable on any April 30 or October 31, will, subject to certain
exceptions provided in the Senior Indenture referred to on the reverse hereof,
be paid to the person in whose name this Note (or one or more predecessor
Notes) is registered at the close of business on the April 15 or October 15
(whether or not a Business Day), as the case may be, next preceding such April
30 or October 31.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been executed by the
Trustee under the Senior Indenture referred to on the reverse hereof by manual
signature.
IN WITNESS WHEREOF, SunAmerica Inc. has caused this instrument to be
signed by facsimile by one of its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
TRUSTEE'S CERTIFICATE SUNAMERICA INC.
OF AUTHENTICATION
This is one of the Securities
referred to in the
within-mentioned Senior Indenture.
THE FIRST NATIONAL BANK
OF CHICAGO,
as Trustee
AUTHORIZED SIGNATORY _________________________________
CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
[REVERSE OF NOTE]
SUNAMERICA INC.
6.20% Note Due October 31, 1999, Series 2
This Note is one of a duly authorized issue of debentures, notes, bonds
or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to a Senior Indenture dated as of April 15, 1993, as
amended by indenture supplements dated June 28, 1993 and October 31, 1996
(herein called the "Senior Indenture"), duly executed and delivered by the
Issuer to The First National Bank of Chicago, as Trustee (herein called the
"Trustee"), to which Senior Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Issuer and the Holders of the Securities. The Securities may be issued in one
or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest (if any)
at different rates, may be subject to different redemption provisions (if any)
and may otherwise vary as provided in the Senior Indenture. This Note is one
of a series designated as the 6.20% Notes due October 31, 1999, Series 2 (the
"Notes") of the Issuer, limited in aggregate principal amount to $56,250,000.
Except as otherwise provided in the Senior 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 Senior 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.
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal hereof may be declared, and upon
such declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions provided in the Senior Indenture.
The Senior 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
Senior 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 Senior 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 Senior
Indenture, the consent of the Holders of which is required for any such
modification. It is also provided in the Senior 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 of Default and its consequences. The preceding sentence
shall not, however, apply to a default in the payment of the principal or
interest on any of the Securities. Any such consent or waiver by the
Holder of this Note (unless revoked as provided in the Senior 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 hereof 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 Senior Indenture and no provision of this
Note or of the Senior Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note in the manner, at the respective times, at the rate and
in the coin or currency herein prescribed.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof at the office or
agency of the Issuer in the Borough of Manhattan, The City of New York, or at
such other locations as the Issuer may from time to time designate, and in the
manner and subject to the limitations provided in the Senior Indenture, but
without the payment of any service charge, Notes may be exchanged for a like
aggregate principal amount of Notes of other authorized denominations.
The Notes are not redeemable or repayable prior to maturity and are not
entitled to any sinking fund.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Issuer in the Borough of Manhattan, The City of New
York, or at such other locations as the Issuer may from time to time
designate, a new Note or Notes of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Senior Indenture, without
charge except for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the registered Holder hereof as the absolute owner
of this Note (whether or not this Note shall be overdue and notwithstanding
any notation of ownership or other writing hereon), for the purpose of
receiving payment of, or on account of, the principal hereof and subject to
the provisions on the face hereof, interest hereon, and for all other
purposes, and none of the Issuer, the Trustee or any authorized agent of the
Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Senior Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholders, officer or director, as
such, of the Issuer or of any successor corporation, either directly or
through the Issuer or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
Terms used herein which are defined in the Senior Indenture shall have
the respective meanings assigned thereto in the Senior Indenture.
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________
TEN ENT - as tenants by the (Cust) (Minor)
entireties
JT TEN - as joint tenants Under Uniform Gifts to Minors
with right of Act___________________________________
survivorship and not (State)
as tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE OF ASSIGNEE
- ------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated:_____________________ Signed: ______________________________________
NOTICE: The signature to this assignment must
correspond with the name as written
upon the face of the within Note in
every particular without attention or
enlargement or any change whatsoever.
Signature Guarantee:
- ---------------------------
EXBHIBIT 4.3
==============================================================================
SUNAMERICA INC.
AND
THE BANK OF NEW YORK,
AS PURCHASE CONTRACT AGENT
PURCHASE CONTRACT AGREEMENT
DATED AS OF NOVEMBER 6, 1996
==============================================================================
TABLE OF CONTENTS
Page
====
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions.............................................1
Section 1.02. Compliance Certificates and Opinions....................9
Section 1.03. Form of Documents Delivered to Agent...................10
Section 1.04. Acts of Holders; Record Dates..........................11
Section 1.05. Notices, Etc., to Agent and the Company................12
Section 1.06. Notice to Holders; Waiver..............................13
Section 1.07. Effect of Headings and Table of Contents...............13
Section 1.08. Successors and Assigns.................................14
Section 1.09. Separability Clause....................................14
Section 1.10. Benefits of Agreement..................................14
Section 1.11. Governing Law..........................................14
Section 1.12. Legal Holidays.........................................14
Section 1.13. Counterparts...........................................15
Section 1.14. Inspection of Agreement................................15
Section 1.15. Appointment of Financial Institution as Agent for
the Company ...........................................15
ARTICLE 2
Security Certificate Forms
Section 2.01. Forms of Security Certificates Generally; Book-Entry...15
Section 2.02. Form of Agent's Certificate of Authentication..........18
ARTICLE 3
The Securities
Section 3.01. Title and Terms; Denominations.........................18
Section 3.02. Rights and Obligations Evidenced by the
Security Certificates .................................18
Section 3.03. Execution, Authentication, Delivery and Dating.........19
Section 3.04. Temporary Security Certificates........................20
Section 3.05. Registration; Registration of Transfer and Exchange....20
Section 3.06. Mutilated, Destroyed, Lost and Stolen Security
Certificates...........................................22
Section 3.07. Persons Deemed Owners..................................23
Section 3.08. Cancellation...........................................24
Section 3.09. Securities Not Separable...............................25
Section 3.10. No Consent to Assumption...............................25
Section 3.11. Cusip Numbers..........................................25
ARTICLE 4
The Treasury Notes
Section 4.01. Payment of Interest; Interest Rights Preserved.........25
Section 4.02. Transfer of Treasury Notes upon Certain Events or
Sale of Treasury Notes.................................26
ARTICLE 5
The Purchase Contracts
Section 5.01. Purchase of Shares of Common Stock on the Final
Settlement Date........................................28
Section 5.02. Contract Fees..........................................29
Section 5.03. Deferral of Payment Dates for Contract Fees............30
Section 5.04. Payment of Purchase Price..............................31
Section 5.05. Issuance of Common Stock...............................31
Section 5.06. Settlement Rate; Adjustment of Settlement Rate for
Dividends, Distributions, Stock Splits, Etc............32
Section 5.07. Notice of Adjustments and Certain Other Events.........38
Section 5.08. Acceleration; Notice...................................39
Section 5.09. Bankruptcy Event or Sale of Assets; Notice.............42
Section 5.10. Holder's Early Settlement..............................43
Section 5.11. No Fractional Shares...................................44
Section 5.12. Charges and Taxes......................................45
ARTICLE 6
Remedies
Section 6.01. Unconditional Right of Holders to Receive Contract
Fees and Purchase Common Stock.........................45
Section 6.02. Restoration of Rights and Remedies.....................46
Section 6.03. Rights and Remedies Cumulative.........................46
Section 6.04. Delay or Omission Not Waiver...........................46
Section 6.05. Undertaking for Costs..................................46
Section 6.06. Waiver of Stay or Extension Laws.......................47
ARTICLE 7
The Agent
Section 7.01. Certain Duties and Responsibilities....................47
Section 7.02. Notice of Default......................................48
Section 7.03. Certain Rights of Agent................................48
Section 7.04. Not Responsible for Recitals or Issuance of Securities.50
Section 7.05. May Hold Securities....................................50
Section 7.06. Money Held in Custody..................................50
Section 7.07. Compensation and Reimbursement.........................50
Section 7.08. Corporate Agent Required; Eligibility..................51
Section 7.09. Resignation and Removal; Appointment of Successor......52
Section 7.10. Acceptance of Appointment by Successor.................53
Section 7.11. Preservation of Information; Communications to Holders.53
Section 7.12. No Obligations of Agent................................54
Section 7.13. Tax Compliance.........................................54
Section 7.14. Merger, Conversion, Consolidation or Succession to
Business of Agent......................................55
ARTICLE 8
Supplemental Agreements
Section 8.01. Supplemental Agreements Without Consent of Holders.....55
Section 8.02. Supplemental Agreements with Consent of Holders........56
Section 8.03. Execution of Supplemental Agreements...................57
Section 8.04. Effect of Supplemental Agreements......................57
Section 8.05. Reference to Supplemental Agreements...................57
ARTICLE 9
Covenants
Section 9.01. Performance under Purchase Contracts...................58
Section 9.02. Maintenance of Office or Agency........................58
Section 9.03. Company to Reserve Common Stock........................59
Section 9.04. Covenants as to Common Stock...........................59
Section 9.05. Statements of Officers of the Company as to Default....59
PURCHASE CONTRACT AGREEMENT, dated as of November 6, 1996,
between SunAmerica Inc., a Maryland corporation (the "Company"), and The Bank
of New York, a New York banking corporation, acting as purchase contract agent
for the Holders of Securities from time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of
this Agreement and the Security Certificates evidencing the Securities.
All things necessary to make the Company's obligations under the
Securities, when the Security Certificates are executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Agent,
as in this Agreement provided, the valid obligations of the Company, and to
constitute these presents a valid agreement of the Company, in accordance with
its terms, have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01 Definitions.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and
(2) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder, has the meaning
specified in Section 1.04(a).
"Acceleration" means either a "Company Acceleration" or a
"Mandatory Acceleration."
"Acceleration Date" means either a "Company Acceleration Date"
or a "Mandatory Acceleration Date."
"Acceleration Settlement Fund" has the meaning specified in
Section 5.5.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means the Person named as the "Agent" in the first
paragraph of this instrument until a successor Agent shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter
"Agent" shall mean the Person who is then the Agent hereunder.
"Agreement" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"applicants" has the meaning specified in Section 7.11.0
"Authorized Newspaper" has the meaning set forth in Section
5.08(c).
"Bankruptcy Code" means title 11 of the United States Code, or
any other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Bankruptcy Date" means the date, if any, on which a Bankruptcy
Event occurs.
"Bankruptcy Event" means the occurrence of any of the following
events (whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order rule or regulation of any administration or governmental body):
(i) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or any
substantial part of its property or ordering the winding up or liquidation of
its affairs, and such decree or order shall remain unstayed and in effect for
a period of 60 consecutive days; or
(ii) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property, or make
any general assignment for the benefit of creditors.
"Beneficial Owner" means, with respect to a Book Entry
Interest, a Person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with the
rules of such Clearing Agency).
"Board of Directors" means the board of directors of the
Company or a duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification and
delivered to the Agent.
"Book Entry Interest" means a beneficial interest in a Global
Security Certificate registered in the name of a Clearing Agency or a nominee
thereof, ownership and transfers of which shall be maintained and made through
book entries by such Clearing Agency as described in Section 2.1.0
"Business Day" means any day that is not a Saturday, Sunday or
a day on which the NYSE or banking institutions or trust companies in The City
of New York are authorized or obligated by law or executive order to be closed.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depository for the Securities and in whose name or in the name of a nominee
of that organization, shall be registered a Global Security Certificate and
which shall undertake to effect book entry transfers and pledges of the
Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Price"means on any day the closing sales price regular
way on such day or, in case no such sale takes place on such day, the average
of the reported closing bid and asked prices regular way, in each case on the
New York Stock Exchange, or, if the Common Stock is not listed or admitted to
trading on such Exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or, if not listed or
admitted to trading on any national securities exchange, the average of the
closing bid and asked prices of the Common Stock on the over-the-counter
market on the day in question as reported by the National Quotation Bureau
Incorporated, or a similarly generally accepted reporting service, or if not so
available in such manner as furnished by any New York Stock Exchange member
firm selected from time to time by the Board of Directors of the Company for
that purpose.
"Collateral Agent" means The First National Bank of Chicago, as
Collateral Agent under the Pledge Agreement until a successor Collateral Agent
shall have become such pursuant to the applicable provisions of the Pledge
Agreement, and thereafter "Collateral Agent" shall mean the Person who is then
the Collateral Agent thereunder.
"Common Stock" means the Common Stock, par value $1.000 per
share, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such pursuant
to the applicable provisions of this Agreement, and thereafter "Company" shall
mean such successor.
"Company Acceleration" has the meaning specified in Section 5.8.
"Company Acceleration Date" has the meaning specified in
Section 5.8.
"Company Acceleration Price" shall mean the per share price
(payable in shares of Common Stock) at which the Company may accelerate
settlement of the Securities, which shall be initially $59.289, declining by
$.008060 on each day following November 6, 1996 (computed on the basis of a
360-day year of twelve 30-day months) to $51.01081 on August 31, 1999 and equal
to $50.625 thereafter.
"Contract Fees" means the fees payable by the Company on each
Payment Date in respect of each Purchase Contract, equal to 1.00% per annum of
the Stated Amount plus any Deferred Contract Fees accrued pursuant to Section
5.3, computed on the basis of the actual number of days elapsed in a year of
365 or 366 days, as the case may be, except that the Contract Fees payable on
the first Payment Date will be adjusted so that the Contract Fees payable on
such date will be $.122243 per Security.
"Corporate Trust Office" means the principal corporate trust
office of the Agent at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is located at
101 Barclay Street, Floor 21 West, New York, New York 10286, Attention:
Corporate Trust Trustee Administration.
"Current Market Price" has the meaning specified in Section
5.6(g).
"Deferred Contract Fees" has the meaning specified in Section
5.3.
"Depositary" means a clearing agency registered under the
Exchange Act that is designated to act as Depositary for the Securities as
contemplated by Section 3.5.
"DTC" has the meaning specified in Section 2.1.0
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"Expiration Date" has the meaning specified in Section 1.04(e).
"Expiration Time" has the meaning specified in Section 5.6(f).
"Final Settlement Date" means October 31, 1999.
"Final Settlement Fund" has the meaning specified in Section
5.5.
"Global Security Certificate" means a Security Certificate that
evidences all or part of the Securities and is registered in the name of a
Depositary or a nominee thereof.
"Holder" when used with respect to a Security Certificate (or a
Security), means a Person in whose name the Security evidenced by such
Security Certificate (or the Security Certificate evidencing such Security) is
registered in the Security Register, subject to Section 3.7.
"Holder's Early Settlement" has the meaning specified in Section
5.10(a).
"Holder's Early Settlement Amount" has the meaning specified in
Section 5.10(a).
"Holder's Early Settlement Date" has the meaning specified in
Section 5.10(a).
"Indenture" means the Prepaid Securities Indenture between the
Company and The Bank of New York, as Trustee, dated as of November 1, 1996 as
amended by the First Supplemental Indenture between the Company and The Bank
of New York, as Trustee, dated as of November 6, 1996 specifically relating to
the Prepaid Securities, as amended from time to time.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Company by its Chairman of the Board, any
Vice Chairman, its President, any Vice President or any Treasurer and
delivered to the Agent.
"Mandatory Acceleration" has the meaning specified in Section
5.8.
"Mandatory Acceleration Date" has the meaning specified in
Section 5.8.
"Merger or Consolidation" has the meaning specified in Section
5.8.
"Notice Date" has the meaning specified in Section 5.8.
"NYSE" means the New York Stock Exchange.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, any Vice Chairman of the Board, the President, any Vice
President or any Treasurer and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company and who shall be
reasonably acceptable to the Agent.
"Outstanding Securities" means, as of the date of
determination, all Securities evidenced by then Outstanding Security
Certificates, except:
(i) If a Bankruptcy Event has occurred, Securities for
which the underlying Treasury Notes have been theretofore
deposited with the Agent in trust for the Holders of such
Securities; and
(ii) On and after a Company Acceleration Date, Securities
as to which the Company has elected to effect a Company
Acceleration; provided, however, that in determining whether the
Holders of the requisite number of Securities have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company or any Affiliate
of the Company shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Agent shall
be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities which the Agent knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good
faith may be regarded as outstanding if the pledgee establishes to
the satisfaction of the Agent the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Company
or any Affiliate of the Company.
"Outstanding Security Certificates" means, as of the date of
determination, all Security Certificates theretofore authenticated, executed
and delivered under this Agreement, except:
(i) Security Certificates theretofore canceled by the Agent
or delivered to the Agent for cancellation; and
(ii) Security Certificates in exchange for or in lieu of which
other Security Certificates have been authenticated, executed on behalf of the
Holder and delivered pursuant to this Agreement, other than any such Security
Certificate in respect of which there shall have been presented to the Agent
proof satisfactory to it that such Security Certificate is held by a bona fide
purchaser in whose hands the Securities evidenced by such Security Certificate
are valid obligations of the Company.
"Payment Date" means each April 30 and October 31commencing
April 30, 1997.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pledge" means the pledge under the Pledge Agreement of the
Treasury Notes constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, among the Company, the Collateral Agent and the Agent, on its own
behalf and as attorney-in-fact for the Holders from time to time of the
Securities.
"Predecessor Security Certificate" of any particular Security
Certificate means every previous Security Certificate evidencing all or a
portion of the rights and obligations of the Holder under the Securities
evidenced thereby; and, for the purposes of this definition, any Security
Certificate authenticated and delivered under Section 3.6 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security Certificate shall be
deemed to evidence the same rights and obligations of the Holder as the
mutilated, destroyed, lost or stolen Security Certificate.
"Prepaid Securities" means the series of securities issued
under the Indenture and designated the "8.5% Prepaid Premium Equity Redemption
Cumulative Securities" to be issued upon a Holder's Early Settlement.
"Purchase Contract," when used with respect to any Security,
means the contract obligating the Company to sell and the Holder of such
Security to purchase Common Stock and to pay Contract Fees and Deferred
Contract Fees, if any, on the terms and subject to the conditions set forth in
Article 5 hereof.
"Purchased Shares" has the meaning specified in Section 5.6(g).
"Record Date" for the interest and Contract Fees payable on any
Payment Date means, as to any Global Security Certificate, the Business Day
next preceding such Payment Date, and as to any other Security Certificate,
the 15th day of the month preceding such Payment Date.
"Responsible Officer," when used with respect to the Agent,
means any officer of the Agent assigned by the Agent to administer its
corporate trust matters.
"Sale of Assets" means a sale, assignment, transfer, lease or
conveyance of all or substantially all of the properties and assets of the
Company to any Person which results in a voluntary liquidation, dissolution or
winding up of the Company.
"Sale of Assets Date" means the date upon which a Sale of
Assets is approved by the Board of Directors.
"Security" means the collective rights and obligations of a
Holder of a Security Certificate in respect of Treasury Notes with a principal
amount equal to the Stated Amount, subject to the Pledge thereof, and a
Purchase Contract.
"Security Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Securities
specified on such certificate.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Settlement Date" means an Acceleration Date, a Holder's Early
Settlement Date, a Sale of Assets Date or the Final Settlement Date, as
applicable.
"Settlement Rate" has the meaning specified in Article 5.
"Stated Amount" means $37.50.
"TIA" means the Trust Indenture Act of 1939, as amended, or any
successor statute.
"Trading Day" has the meaning specified in Section 5.6(g).
"Treasury Notes" means 7.5% United States Treasury Notes due
October 31, 1999.
"Underwriting Agreement" means the Purchase Agreement dated
October 31, 1996 between the Company and Morgan Stanley & Co. Incorporated,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co. and
Smith Barney Inc., as representatives of the several Underwriters named
therein (collectively, the "Underwriters"), as amended by the First Amendment
to the Underwriting Agreement dated November 1, 1996 between the Company and
the Underwriters.
"Vice President" means any vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president."
Section 1.02. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon
any application or request by the Company to the Agent to take any action under
any provision of this Agreement, the Company shall furnish to the Agent an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Agreement relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Agreement relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Agent.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be consolidated
and form one instrument.
Section 1.04. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are
delivered to the Agent and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Agreement and (subject to Section 7.1) conclusive in favor
of the Agent and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Agent deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security Certificate
evidencing such Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Agent or the Company in reliance thereon, whether
or not notation of such action is made upon such Security Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Agreement to be given, made or
taken by Holders of Securities. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no
other Holders, shall be entitled to take the relevant action, whether or not
such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite number of Outstanding Securities
on such record date. Nothing in this paragraph shall be construed to prevent
the Company from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record
date previously set shall automatically and with no action by any Person be
canceled and of no effect), and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite number of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Agent in writing and to each
Holder of Securities in the manner set forth in Section 1.06.
With respect to any record date set pursuant to this Section,
the Company may designate any date as the "Expiration Date" and from time to
time may change the Expiration Date to any earlier or later day; provided that
no such change shall be effective unless notice of the proposed new Expiration
Date is given to the Agent in writing, and to each Holder of Securities in the
manner set forth in Section 1.06, on or prior to the existing Expiration Date.
If an Expiration Date is not designated with respect to any record date set
pursuant to this Section, the Company shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Section 1.05. Notices, Etc., to Agent and the Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Agreement to be made upon, given or furnished to, or filed with,
(a) the Agent by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or mailed,
first-class postage prepaid, to the Agent at 101 Barclay Street, Floor 21 West,
New York, New York 10286, Attention: Corporate Trust Trustee Administration,
or at any other address previously furnished in writing by the Agent to the
Holders and the Company, or
(b) the Company by the Agent or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or mailed,
first-class postage prepaid, to the Company at 1 SunAmerica Center, Los
Angeles, California 90067-6022, Attention: Susan L. Harris, or at any other
address previously furnished in writing to the Agent by the Company.
Section 1.06. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Agent, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Agent
shall constitute a sufficient notification for every purpose hereunder.
Section 1.07. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.08. Successors and Assigns.
All covenants and agreements in this Agreement by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.09. Separability Clause.
In case any provision in this Agreement or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof and thereof shall not in any
way be affected or impaired thereby.
Section 1.10. Benefits of Agreement.
Nothing in this Agreement or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefits or any legal or equitable
right, remedy or claim under this Agreement. The Holders from time to time
shall be beneficiaries of this Agreement and shall be bound by all of the
terms and conditions hereof and of the Securities evidenced by their Security
Certificates by their acceptance of delivery thereof.
Section 1.11. Governing Law.
This Agreement and the Securities shall be governed by and
construed in accordance with the laws of the State of New York without regard
to conflict of laws.
Section 1.12. Legal Holidays.
In any case where any Payment Date or any Settlement Date shall
not be a Business Day, then (notwithstanding any other provision of this
Agreement or of the Securities) payment in respect of interest on Treasury
Notes or Contract Fees or settlement of Purchase Contracts shall not be made,
Purchase Contracts shall not be performed and settlement shall not be effected
on such date, but such payments shall be made, or the Purchase Contracts shall
be performed or settlement effected, as applicable, on the next succeeding
Business Day with the same force and effect as if made on such Payment Date or
Settlement Date, as the case may be; provided, that no interest shall accrue
or be payable by the Company or any Holder for the period from and after any
such Payment Date or Settlement Date, as the case may be.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which, when so executed, shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable
times at the Corporate Trust Office for inspection by any Holder.
Section 1.15. Appointment of Financial Institution as Agent
for the Company .
The Company may appoint a financial institution (which may be
the Collateral Agent) to act as its agent in performing its obligations, and in
accepting and enforcing performance of the obligations of the Agent and the
Holders, under this Agreement and the Purchase Contracts, by giving notice of
such appointment in the manner provided in Section 1.05 hereof. Any such
appointment shall not relieve the Company in any way from its obligations
hereunder.
ARTICLE 2
Security Certificate Forms
Section 2.01. Forms of Security Certificates Generally;
Book-Entry.
The Security Certificates (including the form of Purchase
Contracts forming part of the Securities evidenced thereby) shall be in
substantially the form set forth in Exhibit A hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by
the rules of any securities exchange on which the Securities are listed or
Depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Security Certificates, as evidenced by
their execution of the Security Certificates.
The definitive Security Certificates (if any) shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Security Certificates, consistent with the provisions of this Agreement, as
evidenced by their execution thereof.
Every Global Security Certificate authenticated, executed on
behalf of the Holders and delivered hereunder shall bear a legend in
substantially the following form:
THIS SECURITY CERTIFICATE IS A GLOBAL SECURITY CERTIFICATE WITHIN
THE MEANING OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY ("DTC") OR A NOMINEE OF DTC. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF
THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE
BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR
ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (55 WATER STREET) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
The Securities will be issued in the form of one or more, fully
registered Global Security Certificates, to be delivered to DTC, the initial
Clearing Agency, by, or on behalf of, the Company. Such Global Security
Certificates shall initially be registered on the books and records of the
Company in the name of Cede & Co., the nominee of DTC, and no Holder will
receive a definitive Security Certificate representing such Holder's interests
in such Global Security Certificates, except as provided in this Section 2.01.
Unless and until definitive, fully registered Security Certificates have been
issued to a Holder pursuant to the provisions of this Section 2.01:
(i) the provisions of this Section 2.001 shall be in full
force and effect;
(ii) the Company and the Agent shall be entitled to deal with
the Clearing Agency for all purposes of this Agreement (including the payment
of any amounts on the Global Security Certificates and receiving approvals,
votes or consents hereunder) as the Holder and the sole holder of the Global
Security Certificates and shall have no obligation to the Beneficial Owner;
(iii) to the extent that the provisions of this Section 2.001
conflict with any other provisions of this Agreement or the Purchase
Contracts, the provisions of this Section 2.001 shall control; and
(iv) the rights of the Beneficial Owners shall be exercised
only through the Clearing Agency and shall be limited to those established by
law and agreements between such Beneficial Owners and the Clearing Agency
and/or the Clearing Agency Participants. DTC will make book entry transfers
among the Clearing Agency Participants and receive and transmit payments of
amounts on the Global Security Certificates to such Clearing Agency
Participants.
Whenever a notice or other communication to the Holders is
required to be given under this Agreement, unless and until definitive Security
Certificates shall have been issued, the Company and the Agent shall give all
such notices and communications, specified herein to be given to Holders, to
the Clearing Agency and, with respect to any Security Certificate registered in
the name of a Clearing Agency or the nominee of a Clearing Agency, the Company
and the Agent shall have no notice obligations to the Holder.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities, the Company may, in
their sole discretion, appoint a successor Clearing Agency with respect to the
Securities.
If (i) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities and a successor Clearing
Agency is not appointed within 90 days after such discontinuance or (ii) the
Company elects after consultation with the Agent to terminate the book entry
system through the Clearing Agency with respect to the Securities, then (x)
definitive Security Certificates shall be prepared by the Agent on behalf of
the Company with respect to such Securities and (y) upon surrender of the
Global Security Certificates by the Clearing Agency, accompanied by
registration instructions, the Agent shall cause definitive Security
Certificates to be delivered to Holders in accordance with the instructions of
the Clearing Agency. Neither the Agent nor the Company shall be liable for
any delay in delivery of such instructions and each of them may conclusively
rely on and shall be protected in relying on, such instructions.
Section 2.02.0 Form of Agent's Certificate of Authentication.
The form of the Agent's certificate of authentication of the
Securities shall be in substantially the form set forth on the form of the
Security Certificates.
ARTICLE 3
The Securities
Section 3.01. Title and Terms; Denominations.
The aggregate number of Securities evidenced by Security
Certificates authenticated, executed on behalf of the Holders and delivered
hereunder is limited to 11,500,000, with a Stated Amount of $37.50 per
Security, except for Security Certificates authenticated, executed and
delivered upon registration of transfer of, in exchange for, or in lieu of,
other Security Certificates pursuant to Section 3.04, 3.05, 3.06, 5.10 or 8.5.
The Security Certificates shall be issuable only in registered
form and only in denominations of a single Security and any integral multiple
thereof.
Section 3.02. Rights and Obligations Evidenced by the Security
Certificates.
Each Security Certificate shall evidence the number of
Securities specified therein, with each such Security representing the
ownership by the Holder thereof of Treasury Notes with a principal amount
equal to the Stated Amount, subject to the Pledge of such Treasury Notes by
such Holder pursuant to the Pledge Agreement, and the rights and obligations
of the Holder under one Purchase Contract. The Agent as attorney-in-fact for,
and on behalf of, the Holder shall pledge, pursuant to the Pledge Agreement,
dated as of the date hereof, the Treasury Notes to the Collateral Agent and
grant to the Collateral Agent a security interest in the right, title, and
interest of such Holders in the Treasury Notes, for the benefit of the
Company, to secure the obligation of the Holders under the Purchase Contracts
to purchase the Common Stock of the Company. Prior to the purchase, if any, of
shares of Common Stock under the Purchase Contracts, the Securities shall not
entitle the Holders to any of the rights of a holder of shares of Common Stock,
including, without limitation, the right to vote or receive any dividends or
other payments or to consent or to receive notice as stockholders in respect of
the meetings of stockholders or for the election of directors of the Company or
for any other matter, or any other rights whatsoever as stockholders of the
Company, except to the extent otherwise expressly provided in this Agreement.
Section 3.03 Execution, Authentication, Delivery and Dating.
Upon the execution and delivery of this Agreement, at any time
and from time to time thereafter, the Company may deliver Security Certificates
executed by the Company to the Agent for authentication, execution on behalf
of the Holders and delivery, together with its Issuer Order for authentication
of such Security Certificates, and the Agent in accordance with such Issuer
Order shall authenticate, execute on behalf of the Holder and make available
for delivery such Security Certificates.
The Security Certificates shall be executed on behalf of the
Company by its Chairman of the Board, any Vice Chairman of the Board, its
President or any Vice President or its Treasurer, under its corporate seal
which may, but need not, be attested. The signature of any of these officers
on the Security Certificates may be manual or facsimile.
Security Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Security Certificates or did not hold such offices at the
date of such Security Certificates.
No Purchase Contract underlying a Security evidenced by a
Security Certificate shall be valid until such Security Certificate has been
executed on behalf of the Holder by the manual signature of an authorized
signatory of the Agent, as such Holder's attorney-in-fact. Such signature by
an authorized signatory of the Agent shall be conclusive evidence that the
Holder of such Security Certificate has entered into the Purchase Contracts
underlying the Securities evidenced by such Security Certificate.
Each Security Certificate shall be dated the date of its
authentication.
No Security Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose unless there appears
on such Security Certificate a certificate of authentication substantially in
the form provided for herein executed by an authorized signatory of the Agent
by manual signature, and such certificate upon any Security Certificate shall
be conclusive evidence, and the only evidence, that such Security Certificate
has been duly authenticated and made available for delivery hereunder.
Section 3.04. Temporary Security Certificates.
Pending the preparation of definitive Security Certificates, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holders, and deliver, in lieu of such
definitive Security Certificates, temporary Security Certificates which are in
substantially the form set forth in Exhibit A hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by
the rules of any securities exchange on which the Securities are listed, or as
may, consistently herewith, be determined by the officers of the Company
executing such Security Certificates, as evidenced by their execution of the
Security Certificates.
If temporary Security Certificates are issued, the Company will
cause definitive Security Certificates to be prepared without unreasonable
delay. After the preparation of definitive Security Certificates, the
temporary Security Certificates shall be exchangeable for definitive Security
Certificates upon surrender of the temporary Security Certificates at the
Corporate Trust Office, at the expense of the Company and without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Security Certificates, the Company shall execute and deliver to the Agent, and
the Agent shall authenticate, execute on behalf of the Holder, and deliver in
exchange therefor, one or more definitive Security Certificates of authorized
denominations and evidencing a like number of Securities as the temporary
Security Certificate or Security Certificates so surrendered. Until so
exchanged, the temporary Security Certificates shall in all respects evidence
the same benefits and the same obligations with respect to the Securities
evidenced thereby as definitive Security Certificates.
Section 3.05. Registration; Registration of Transfer and
Exchange.
The Agent shall keep at the Corporate Trust Office a register
(the register maintained in such office being herein referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Agent shall provide for the registration of Security
Certificates and of transfers of Security Certificates (the Agent, in such
capacity, the "Security Registrar").
Upon surrender for registration of transfer of any Security
Certificate at the Corporate Trust Office, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf of
the designated transferee or transferees, and deliver, in the name of the
designated transferee or transferees, one or more new Security Certificates of
any authorized denominations and evidencing a like number of Securities.
At the option of the Holder, if definitive Security
Certificates are issued, Security Certificates may be exchanged for other
Security Certificates, of any authorized denominations and evidencing a like
number of Securities, upon surrender of the Security Certificates to be
exchanged at the Corporate Trust Office. Whenever any Security Certificates
are so surrendered for exchange, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver the Security Certificates which the Holder making the exchange is
entitled to receive.
All Security Certificates issued upon any registration of
transfer or exchange of a Security Certificate shall evidence the ownership of
the same number of Securities and be entitled to the same benefits and subject
to the same obligations, under this Agreement as the Securities evidenced by
the Security Certificate surrendered upon such registration of transfer or
exchange.
Every Security Certificate presented or surrendered for
registration of transfer or for exchange shall (if so required by the Agent)
be duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Agent duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of a Security Certificate, but the Company and the Agent
may require payment from the Holder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Security Certificates, other than any
exchanges pursuant to Sections 3.04, 3.06, 5.10, and 8.5 not involving any
transfer.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder and deliver any
Security Certificate presented or surrendered for registration of transfer or
for exchange on or after the Final Settlement Date, an earlier Acceleration
Date with respect to the Securities evidenced by such Certificates, a Holder's
Early Settlement Date with respect to the Securities evidenced by such
Certificates or after the Purchase Contracts have terminated. In lieu of the
delivery of a replacement Security Certificate following the Final Settlement
Date or an earlier Acceleration Date with respect to the Securities evidenced
by such Certificates, the Agent, upon satisfaction of any conditions set forth
herein, will deliver the Common Stock issuable pursuant to the Purchase
Contracts included in the Securities evidenced by such Certificate, or, if the
Purchase Contracts have terminated prior to the Final Settlement Date or a
Holder's Early Settlement Date has occurred, upon satisfaction of any
conditions set forth herein, transfer the Treasury Notes included in the
Securities evidenced by such Certificate.
The provisions of Clauses (a), (b), (c) and (d) below shall
apply only to Global Security Certificates:
(a) Each Global Security Certificate authenticated and executed on
behalf of the Holders under this Agreement shall be registered in the name of
Cede & Co., as nominee of DTC as set forth in Section 2.1.
(b) Notwithstanding any other provision in this Agreement, no
Global Security Certificate may be exchanged in whole or in part for Security
Certificates registered, and no transfer of a Global Security Certificate in
whole or in part may be registered, in the name of any Person other than DTC
for such Global Security Certificate or a nominee thereof unless (A) DTC (i)
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security Certificate or (ii) has ceased to be a
Clearing Agency registered under the Exchange Act or (B) there shall have
occurred and be continuing a default by the Company in respect to its
obligations under one or more Purchase Contracts.
(c) Subject to clause (b) above, any exchange of a Global Security
Certificate for other Security Certificates may be made in whole or in part,
and all Security Certificates issued in exchange for a Global Security
Certificate or any portion thereof shall be registered in such names as DTC
shall direct.
(d) Every Security Certificate authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security Certificate or any portion thereof, whether pursuant to this Section,
Section 3.04, 3.06, 5.10 or 8.5 or otherwise, shall be authenticated, executed
on behalf of the Holders and delivered in the form of, and shall be, a Global
Security Certificate, unless such Security Certificate is registered in the
name of a Person other than the Depositary for such Global Security
Certificate or a nominee thereof.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Security
Certificates.
If any mutilated Security Certificate is surrendered to the
Agent, the Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and make available for delivery
in exchange therefor, a new Security Certificate, evidencing the same number
of Securities and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security Certificate, and (ii) such security or indemnity as may be required
by them to save each of them and any agent of any of them harmless, then, in
the absence of notice to the Company or the Agent that such Security
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the Holder, and make available for delivery to the Holder, in lieu
of any such destroyed, lost or stolen Security Certificate, a new Security
Certificate, evidencing the same number of Securities and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder, and deliver to the
Holder, a Security Certificate on or after a Bankruptcy Date or a Settlement
Date.
Upon the issuance of any new Security Certificate under this
Section, the Company and the Agent may require the payment by the Holder of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Agent) connected therewith.
Every new Security Certificate issued pursuant to this Section
3.004 in lieu of any destroyed, lost or stolen Security Certificate shall
constitute an original additional contractual obligation of the Company and of
the Holder, whether or not the destroyed, lost or stolen Security Certificate
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits and be subject to all the obligations of this Agreement equally and
proportionately with any and all other Security Certificates delivered
hereunder.
The provisions of this Section 3.004 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or settlement of mutilated, destroyed, lost or stolen Security
Certificates.
Section 3.07. Persons Deemed Owners.
Prior to due presentment of a Security Certificate for
registration of transfer, the Company and the Agent, and any agent of the
Company or the Agent, may treat the Person in whose name such Security
Certificate is registered as the owner of the Securities evidenced thereby,
for the purpose of receiving payments of interest on the Treasury Notes,
receiving payments of Contract Fees and any Deferred Contract Fees, delivery
of the Treasury Notes, performance of the Purchase Contracts and for all other
purposes whatsoever, whether or not the payment of interest on the Treasury
Notes or any Contract Fees payable in respect of the Purchase Contracts
constituting a part of the Securities evidenced thereby shall be overdue and
notwithstanding any notice to the contrary, and neither the Company nor the
Agent, nor any agent of the Company or the Agent, shall be affected by notice
to the contrary.
Notwithstanding the foregoing, with respect to any Global
Security Certificate, nothing herein shall prevent the Company, the Agent or
any agent of the Company or the Agent, from giving effect to any written
certification, proxy or other authorization furnished by DTC, as a Holder,
with respect to such Global Security Certificate or impair, as between DTC and
the Beneficial Owners, the operation of customary practices governing the
exercise of rights of DTC as Holder of such Global Security Certificate.
Section 3.08. Cancellation.
All Security Certificates surrendered for delivery of shares of
Common Stock on or after the Final Settlement Date or an earlier Acceleration
Date, transfer of Treasury Notes after the occurrence of a Bankruptcy Event or
Sale of Assets or pursuant to a Holder's Early Settlement or registration of
transfer or exchange shall, if surrendered to any Person other than the Agent,
be delivered to the Agent and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Agent for
cancellation any Security Certificates previously authenticated, executed and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Security Certificates so delivered shall, upon Issuer
Order, be promptly cancelled by the Agent. No Security Certificates shall be
authenticated, executed on behalf of the Holder and delivered in lieu of or in
exchange for any Security Certificates cancelled as provided in this Section,
except as expressly permitted by this Agreement. All cancelled Security
Certificates held by the Agent shall be disposed of as directed by Issuer
Order, except the Agent itself shall not be required to destroy the Security
Certificates.
If the Company or any Affiliate of the Company shall acquire any
Security Certificate, such acquisition shall not operate as a cancellation of
such Security Certificate unless and until such Security Certificate is
delivered to the Agent cancelled or for cancellation.
Section 3.09. Securities Not Separable.
Notwithstanding anything contained herein or in the Security
Certificates to the contrary, for so long as the Purchase Contract comprising a
portion of a Security remains in effect, such Security shall not be separable
into its constituent parts, for purposes of transfer or exchange of such
Security, and the rights and obligations of the Holder of such Security in
respect of the Treasury Notes and Purchase Contracts comprising such Security
may be acquired, and may be transferred and exchanged, only as a Security.
Other than a Security Certificate evidencing a Security, no Holder of a
Security, or any transferee thereof, shall be entitled to receive a certificate
evidencing the ownership of Treasury Notes or the rights and obligations of
the Holder and the Company under a Purchase Contract for so long as the
Purchase Contract underlying the Security remains in effect.
Section 3.10. No Consent to Assumption.
Each Holder of a Security, by acceptance thereof, shall be
deemed expressly to have withheld any consent to the assumption under Section
365 of the Bankruptcy Code or otherwise, of the Purchase Contract by the
Company or its trustee in the event that the Company becomes the debtor under
the Bankruptcy Code.
Section 3.11. Cusip Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Agent shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of
Acceleration and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such Acceleration shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Agent of any change in the CUSIP numbers.
ARTICLE 4
The Treasury Notes
Section 4.01. Payment of Interest; Interest Rights Preserved.
Interest on any Treasury Note which is paid on any Payment Date
shall, subject to receipt thereof by the Agent from the Collateral Agent as
provided by the terms of the Pledge Agreement, be paid to the Person in whose
name the Security Certificate (or one or more Predecessor Security
Certificates) of which such Treasury Note is a part is registered at the close
of business on the Record Date next preceding such Payment Date. On the first
Payment Date, the Agent shall pay, subject to receipt from the Collateral
Agent, to the Holders the accrued interest on the Treasury Notes for the period
from November 1, 1996 to November 6, 1996 as part of the interest payment on
the Treasury Notes.
Each Security Certificate evidencing Treasury Notes delivered
under this Agreement upon registration of transfer of or in exchange for or in
lieu of any other Security Certificate shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by the Treasury Notes
underlying such other Security Certificate.
In the case of any Security with respect to which settlement of
the underlying Purchase Contract is effected on a Settlement Date after any
Record Date and on or prior to the next succeeding Payment Date, interest on
the Treasury Notes underlying such Security otherwise payable on such Payment
Date shall be payable on such Payment Date notwithstanding such settlement,
and such interest shall, subject to receipt thereof by the Agent, be paid to
the Person in whose name the Security Certificate (or one or more Predecessor
Security Certificates) is registered at the close of business on the Record
Date.
Section 4.02. Transfer of Treasury Notes upon Certain Events or
Sale of Treasury Notes.
(a) Upon the occurrence of a Bankruptcy Event or Sale of Assets
and the transfer to the Agent of the Treasury Notes underlying the Securities
pursuant to the terms of the Pledge Agreement, the Agent shall request
transfer instructions with respect to such Treasury Notes from each Holder of
Securities by written request mailed to such Holder at his address as it
appears in the Security Register, in respect of the Treasury Notes underlying
the Security Certificate held by such Holder. Upon surrender to the Agent of a
Security Certificate with such transfer instructions in proper form for
transfer of the Treasury Notes by Federal Reserve Bank-Wire or other
appropriate procedure, subject to the receipt of the Treasury Notes, the Agent
shall transfer the Treasury Notes evidenced by such Security Certificate to
such Holder in accordance with such instructions within three Business Days.
If a Security Certificate is not duly surrendered to the Agent with appropriate
transfer instructions, the Agent shall hold the Treasury Notes evidenced by
such Security Certificate as custodian for the Holder of such Security
Certificate.
(b) In the event of an Acceleration of Securities, Holders of
Securities so accelerated may elect to pay to the Company through the Agent by
no later than 5:00 p.m., New York City time on the third Business Day
immediately preceding the Acceleration Date in immediately available funds an
amount in U.S. dollars equal to the Stated Amount per Security so accelerated.
Holders may make the election provided in this paragraph (b) only in integral
multiples of 400 Securities. Upon Surrender to the Agent of a Security
Certificate with such transfer instructions in proper form for transfer of the
Treasury Notes by Federal Reserve Bank-Wire or other appropriate procedure,
along with the payment described in the previous sentence, subject to receipt
from the Collateral Agent, the Agent shall transfer the Treasury Notes
evidenced by such Security Certificate to such Holder in accordance with such
instructions within three Business Days of such payment. If payment is made in
accordance with the first sentence of this paragraph (b), the Company will
issue the number of shares of Common Stock equal to the Stated Amount for the
Securities accelerated on the Acceleration Date. The Company will also pay in
cash on the Acceleration Date accrued Contract Fees and Deferred Contract
Fees, if any, to holders of Securities who elect to pay the Stated Amount in
cash upon an Acceleration as provided in this Section.
(c) Because Holders may only elect to make a payment in cash
pursuant to paragraph (b) above in integral multiples of 400 Securities,
Treasury Notes shall be transferred only in denominations of $15,000 and
integral multiples thereof. Any Securities accelerated which are not in
integral multiples of 400 shall be settled in shares of Common Stock pursuant
to Section 5.8.
(d) In the case of an Acceleration of Securities, the Agent on
behalf of each Holder (other than Holders that, pursuant to an election made in
accordance with paragraph (b) of this Section, have paid the Stated Amount in
immediately available funds not later than 5:00 p.m., New York City time on
the third Business Day immediately preceding the Acceleration Date) will sell
on the second Business Day immediately preceding the Acceleration Date the
Treasury Notes underlying each such Holder's Securities to or through one or
more U.S. government securities dealers selected by the Company at the then
prevailing prices and automatically apply on the Acceleration Date, out of the
proceeds of such sale (excluding premium and accrued interest on the Treasury
Notes), an amount equal to the Stated Amount to satisfy in full each such
Holder's obligation to purchase the Common Stock from the Company on the
Acceleration Date. Any excess proceeds (in respect of premium on the sale of
the Treasury Notes) will be paid to such Holder. In the event that the
proceeds from the sale of such Treasury Notes (exclusive of accrued interest
on the Treasury Notes) is less than the Stated Amount, such proceeds
nevertheless will satisfy in full each such Holder's obligation to purchase the
Common Stock from the Company on the Acceleration Date. Amounts in respect of
accrued interest on the Treasury Notes will be paid to each such Holder on the
Acceleration Date. The proceeds of such sales shall be after deduction by the
Agent of all commissions and other out-of-pocket transaction costs incurred in
connection with the sale of such Treasury Notes and, until the net proceeds of
such sale or sales have been distributed to Holders of the Securities, the
Agent shall hold such proceeds as custodian for the Holders of Securities.
Such proceeds shall be held by the Agent uninvested without liability to any
Person for interest or other compensation thereon.
ARTICLE 5
The Purchase Contracts
Section 5.01. Purchase of Shares of Common Stock on the Final Settlement Date.
Each Purchase Contract shall obligate the Holder of the related
Security to purchase, and the Company to sell, on the Final Settlement Date at
a price equal to the Stated Amount, a number of shares of Common Stock equal
to the Settlement Rate on the Final Settlement Date, unless, on or prior to
the Final Settlement Date, there shall have occurred a Bankruptcy Event , Sale
of Assets, an Acceleration or a Holder's Early Settlement with respect to the
Security of which such Purchase Contract is a part.
Each Holder of a Security Certificate evidencing Securities, by
his acceptance thereof, authorizes the Agent to enter into and perform the
related Purchase Contracts on his behalf as his attorney-in-fact, agrees to be
bound by the terms and provisions thereof, covenants and agrees to perform his
obligations under such Purchase Contracts, consents to the provisions hereof,
authorizes the Agent as his attorney-in-fact to enter into and perform the
Pledge Agreement on his behalf as his attorney-in-fact, and consents to and
agrees to be bound by the Pledge of the Treasury Notes underlying such
Security Certificate pursuant to the Pledge Agreement. Each Holder of a
Security, by his acceptance thereof, further covenants and agrees, that, to the
extent and in the manner provided in Section 5.4 and the Pledge Agreement, but
subject to the terms thereof, payments in respect of principal of the Treasury
Notes on the Final Settlement Date shall be paid by the Collateral Agent to
the Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
payments.
Upon registration of transfer of a Security Certificate
evidencing Purchase Contracts, the transferee shall be bound (without the
necessity of any other action on the part of such transferee), under the terms
of this Agreement, the Purchase Contracts evidenced thereby and the Pledge
Agreement and the transferor shall be released from the obligations under the
Purchase Contracts evidenced by the Security Certificates so transferred. The
Company covenants and agrees, and each Holder of a Security Certificate, by
his acceptance thereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
Section 5.02. Contract Fees.
Subject to Section 5.3, the Company shall pay by 12:00 noon New
York City time to the Agent, on each Payment Date, the Contract Fees payable
in respect of each Purchase Contract for the benefit of the Person in whose
name the Security Certificate (or one or more Predecessor Security
Certificates) evidencing such Purchase Contract is registered at the close of
business on the Record Date next preceding such Payment Date. The Contract
Fees will be payable at the office of the Agent in The City of New York
maintained for that purpose or, at the option of the Company, by check mailed
to the address of the Person entitled thereto at such address as it appears on
the Security Register.
Each Security Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of any other Security
Certificate shall carry the rights to Contract Fees accrued and unpaid, and to
accrue, which were carried by the Purchase Contracts evidenced by such other
Security Certificate.
In the case of any Security with respect to which settlement of
the underlying Purchase Contract is effected on a Settlement Date after any
Record Date and on or prior to the next succeeding Payment Date, Contract Fees
otherwise payable on such Payment Date shall be payable on such Payment Date
notwithstanding such settlement, and such Contract Fees shall be paid to the
Person in whose name the Security Certificate evidencing such Security (or one
or more Predecessor Security Certificates) is registered at the close of
business on such Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Security with respect to
which settlement of the underlying Purchase Contract is effected on a
Settlement Date (other than a Holder's Early Settlement Date), Contract Fees
that would otherwise be payable after such Settlement Date with respect to the
Purchase Contract underlying such Security shall not be payable. The right to
receive Contract Fees including accrued and unpaid Contract Fees and Deferred
Contract Fees, if any, shall terminate upon the occurrence of a Bankruptcy
Event, and the Company shall have no further obligations with respect thereto.
The Company's obligations with respect to Contract Fees shall
rank equally and pari passu with all other senior and unsubordinated
liabilities of the Company.
Section 5.03. Deferral of Payment Dates for Contract Fees.
The Company shall have the right, at any time prior to the Final
Settlement Date, an Acceleration Date applicable to a Holder's Securities or
Sale of Assets Date, to defer the payment of any or all of the Contract Fees
otherwise payable on any Payment Date (on a pro rata basis among all
Outstanding Securities), but only if the Company shall give the Holders and
the Agent written notice of its election to defer such payment (specifying the
amount to be deferred and the period of deferment) at least ten Business Days
prior to the earlier of (i) the next succeeding Payment Date or (ii) the date
the Company is required to give notice of the Record Date or Payment Date with
respect to payment of such Contract Fees to the NYSE or other applicable
self-regulatory organization or to Holders of the Securities, but in any event
not less than two Business Days prior to such Record Date. Any Contract Fees
so deferred shall bear additional Contract Fees thereon at the rate of 1.0% per
annum (computed on the basis of the actual number of days elapsed in a year
of 365 or 366 days, as the case may be), compounding on each succeeding
Payment Date, until paid in full (such deferred installments of Contract Fees
together with the additional Contract Fees accrued thereon, are referred to
herein as the "Deferred Contract Fees"). Deferred Contract Fees shall be due
on the next succeeding Payment Date except to the extent that payment is
deferred further in the notice of election pursuant to this Section. The
Company may pay Deferred Contract Fees in whole or in part on any Payment Date
(on a pro rata basis among all Outstanding Securities). No Contract Fees or
Deferred Contract Fees may be deferred to a date that is after the Final
Settlement Date or a Sale of Assets Date or, with respect to any particular
Purchase Contract, the Acceleration thereof.
In the event the Company elects to defer the payment of
Contract Fees on the Purchase Contract until the Final Settlement Date, a Sale
of Assets Date, a Company Acceleration Date or a Mandatory Acceleration Date
(or a date prior to such dates as set forth in its written notice referred to
in the preceding paragraph) the Company shall make a cash payment, on the date
such Deferred Contract Fees become due and payable, equal to the aggregate
amount of Deferred Contract Fees payable to a Holder.
In the event the Company exercises its option to defer the
payment of Contract Fees, then, until the Deferred Contract Fees have been
paid in full, the Company shall not declare or pay dividends on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchase or acquisitions of shares of Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit
plans now or hereafter in effect or the satisfaction by the Company of its
obligations pursuant to any contract or security now or hereafter outstanding
requiring the Company to purchase shares of Common Stock, (ii) as a result of
a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock (iii) the purchase of
fractional shares in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (iv) the payment of accrued dividends (and cash in
lieu of fractional shares) upon the conversion of any shares of preferred
stock of the Company as may be outstanding from time to time, in accordance
with the terms of such stock or (v) dividends on its capital stock paid in
shares of capital stock) or make any guarantee payments with respect to the
foregoing.
Section 5.04. Payment of Purchase Price.
Unless a Holder settles the underlying Purchase Contract
through the early delivery of cash to the Agent in the manner described in
Sections 4.2(b), 5.08 or 5.10, the purchase price for the shares of Common
Stock purchased pursuant to a Purchase Contract shall be paid by application
of payments received by the Company on the Final Settlement Date or an earlier
Acceleration Date from, as the case may be, either (i) the Collateral Agent
pursuant to the Pledge Agreement in respect of the principal of the Treasury
Notes Pledged to secure the obligations of the relevant Holder under such
Purchase Contract or (ii) the proceeds of the sale of the Treasury Notes
underlying the Holder's Securities pursuant to Section 4.02(d). Such
application shall satisfy in full (whether or not the principal amount of the
Treasury Notes then equals the Stated Amount) the obligations under such
Purchase Contract of the Holder of the Security of which such Purchase
Contract is a part. The Company shall not be obligated to issue any shares of
Common Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment in full of the
aggregate purchase price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
Section 5.05. Issuance of Common Stock.
Unless a Bankruptcy Event or Sale of Assets shall have occurred
on or prior to the Final Settlement Date or an earlier Acceleration Date, on
the Final Settlement Date or an earlier Acceleration Date, upon the Company's
receipt of payment in full of the purchase price for the shares of Common Stock
purchased by the Holders (whether by application of the principal of the
Treasury Notes on the Final Settlement Date or the proceeds of the sale of
Treasury Notes as provided in Section 4.02(d) or the Holder's election to pay
the Stated Amount for such Holder's Securities in cash pursuant to Section
4.02(b)), and in payment of consideration set forth in Section 5.8(b)(iii), if
any, and, if the Company has elected to make such payment in shares of Common
Stock to the Holders, the Company shall issue and deposit with the Agent, for
the benefit of the Holders, one or more certificates representing the shares
of Common Stock registered in the name of the Agent (or its nominee) as
custodian for the Holders (such certificates for shares of Common Stock,
together with any dividends or distributions with respect thereto, being
hereinafter referred to as the "Final Settlement Fund" or "Acceleration
Settlement Fund" as applicable) to which the Holders are entitled hereunder.
Subject to the foregoing, upon surrender of a Security Certificate to the Agent
on or after the Final Settlement Date or earlier Acceleration Date, together
with settlement instructions thereon duly completed and executed, the Holder
of such Security Certificate shall be entitled to receive in exchange therefor
a certificate representing that number of whole shares of Common Stock which
such Holder is entitled to receive pursuant to the provisions of this Article
Five (after taking into account all Securities then held by such Holder)
together with cash in lieu of fractional shares as provided in Section 5.11 or
any other cash payments and any dividends or distributions with respect to
such shares constituting part of the Final Settlement Fund or Acceleration
Settlement Fund, as applicable, but without any interest thereon, and the
Security Certificate so surrendered shall forthwith be canceled. Such shares
shall be registered in the name of the Holder or the Holder's designee as
specified in the settlement instructions on the Security Certificate. If any
shares of Common Stock issued in respect of a Purchase Contract are to be
registered to a Person other than the Person in whose name the Security
Certificate evidencing such Purchase Contract is registered, no such
registration shall be made unless the Person requesting such registration has
paid any transfer and other taxes required by reason of such registration in a
name other than that of the registered Holder of the Security Certificate
evidencing such Purchase Contract or has established to the satisfaction of
the Company that such tax either has been paid or is not payable.
Section 5.06. Settlement Rate; Adjustment of Settlement Rate for
Dividends, Distributions, Stock Splits, Etc.
(a) The Settlement Rate to be used to determine the number of
shares of Common Stock to be delivered on the Final Settlement Date or a
Mandatory Acceleration Date pursuant to Sections 5.01 and 5.08(b),
respectively, shall be initially one share of Common Stock for each Purchase
Contract, provided however, that such Settlement Rate shall be subject to
adjustment from time to time as provided below in this Section 5.06. All
adjustments to the Settlement Rate shall be calculated to the nearest 1/100th
of a share of Common Stock (with 5/1000th of a share being rounded to the next
lower 1/100th of a share). Such rate in effect at any time is herein called
the "Settlement Rate".
(b) If the Company shall either:
(i) pay a dividend or make a distribution with respect to
Common Stock in shares of Common Stock,
(ii) subdivide or split its outstanding shares of Common
Stock,
(iii) combine its outstanding shares of Common Stock into a
smaller number of shares, or
(iv) issue by reclassification of its shares of Common Stock
any shares of Common Stock of the Company
then, in any such event, the Settlement Rate in effect immediately prior
thereto shall be adjusted so that the holder of a Security shall be entitled
to receive on settlement of a Security, the number of shares of Common Stock
which such Holder would have owned or been entitled to receive after the
happening of any of the events described above had such Security been settled
at the Settlement Rate in effect immediately prior to such time. Such
adjustment shall become effective at the opening of business on the Business
Day next following the record date for determination of stockholders entitled
to receive such dividend or distribution in the case of a dividend or
distribution and shall become effective immediately after the effective time
in case of a subdivision, split, combination or reclassification. Any shares
of Common Stock issuable in payment of a dividend or distribution shall be
deemed to have been issued immediately prior to the close of business on the
record date for such dividend or distribution for purposes of calculating the
number of outstanding shares of Common Stock under clauses (c) and (d) below.
(c) If the Company shall issue rights or warrants to all holders of its
Common Stock entitling them (for a period not exceeding 45 days from the date
of such issuance) to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price per share of the Common
Stock on the record date for the determination of stockholders entitled to
receive such rights or warrants, then in each case the Settlement Rate shall
be adjusted by multiplying the Settlement Rate in effect immediately prior
thereto by a fraction, of which the numerator shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or warrants
immediately prior to such issuance, plus the number of additional shares of
Common Stock offered for subscription or purchase, and of which the
denominator shall be the number of shares of Common Stock outstanding on the
date of issuance of such rights or warrants, immediately prior to such
issuance, plus the number of shares which the aggregate offering price of the
total number of shares so offered for subscription or purchase would purchase
at the Current Market Price per share of the Common Stock on the record date
for determining stockholders entitled to receive such right or warrants
(determined by multiplying such total number of shares by the exercise price
of such rights or warrants and dividing the product so obtained by such
Current Market Price). Shares of Common Stock owned by or held for the
account of the Company or another company of which a majority of the shares
entitled to vote in the election of directors are held, directly or
indirectly, by the Company shall not be deemed to be outstanding for purposes
of such computation. Such adjustment shall become effective at the opening of
business on the Business Day next following the record date for the
determination of stockholders entitled to receive such rights or warrants.
To the extent that shares of Common Stock are not delivered after the
expiration of such rights or warrants, the Settlement Rate shall be readjusted
to the Settlement Rate which would then be in effect had the adjustments made
upon the issuance of such rights or warrants been made upon the basis of
delivery of only the number of shares of Common Stock actually delivered.
(d) If the Company shall pay a dividend or make a distribution to
all holders of its Common Stock of evidences of its indebtedness or other
assets (including shares of capital stock of the Company but excluding any cash
dividends or any distributions and dividends referred to in clause (b) above),
or shall distribute to all holders of its Common Stock rights or warrants to
subscribe for or purchase securities of the Company or any of its subsidiaries
(other than those referred to in clause (c) above), then in each such case the
Settlement Rate shall be adjusted by multiplying the Settlement Rate in effect
immediately prior to the date of such dividend or distribution by a fraction,
of which the numerator shall be the Current Market Price per share of Common
Stock on the record date for the determination of stockholders entitled to
receive such dividend or distribution, and of which the denominator shall be
such Current Market Price per share of Common Stock less the fair market value
(as determined by the Board of Directors of the Company, whose determination
shall be conclusive) as of such record date of the portion of the assets or
evidences of indebtedness so distributed, or of such subscription rights or
warrants, applicable to one share of Common Stock. Such adjustment shall
become effective on the opening of business on the Business Day next following
the record date for the determination of stockholders entitled to receive such
dividend or distribution.
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding (x) any
quarterly cash dividend on the Common Stock to the extent that the aggregate
cash dividend per share of Common Stock in any fiscal quarter does not exceed
the greater of (A) the amount per share of Common Stock of the next preceding
quarterly cash dividend on the Common Stock to the extent that such preceding
quarterly dividend did not require an adjustment of the Settlement Rate
pursuant to this Section 5.06(e) (as adjusted to reflect subdivisions or
combinations of the Common Stock), and (B) 3.75% of the arithmetic average of
the Closing Price of the Common Stock during the ten consecutive Trading Days
immediately prior to the date of declaration of such dividend, and (y) any
dividend or distribution in connection with the liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary), then, in such
case, the Settlement Rate shall be increased so that the same shall equal the
rate determined by multiplying the Settlement Rate in effect immediately prior
to the close of business on such record date by a fraction of which the
numerator shall be the Current Market Price of the Common Stock, and the
denominator shall be the Current Market Price of the Common Stock on the
record date less the amount of cash so distributed (and not excluded as
provided above) applicable to one share of Common Stock, such increase to be
effective immediately prior to the opening of business on the day following the
record date; provided, however, that in the event the portion of the cash so
distributed applicable to one share of Common Stock of the Company is equal
to or greater than the Current Market Price of the Common Stock of the Company
on the record date, in lieu of the foregoing adjustment, adequate provision
shall be made so that each holder of a Security shall have the right to
receive upon settlement of the Securities the amount of cash such Holder would
have received had such Holder settled each Security on the record date. In
the event that such dividend or distribution is not so paid or made, the
Settlement Rate shall again be adjusted to be the Settlement Rate which would
then be in effect if such dividend or distribution had not been declared. If
any adjustment is required to be made as set forth in this Section 5.06(e) as a
result of a distribution that is a quarterly dividend, such adjustment shall be
based upon the amount by which such distribution exceeds the amount of the
quarterly cash dividend permitted to be excluded pursuant hereto. If an
adjustment is required to be made as set forth in this Section 5.06(e) above as
a result of a distribution that is not a quarterly dividend, such adjustment
shall be based upon the full amount of the distribution.
(f)In case of a tender or exchange offer made by a Person other
than the Company or any subsidiary of the Company for an amount which
increases the offeror's ownership of Common Stock of the Company to more than
25% of the Common Stock outstanding and shall involve the payment by such
Person of consideration per share of Common Stock having a fair market value
(as determined by the Board of Directors of the Company, whose determination
shall be conclusive, and described in a Board Resolution) at the last time
(the "Expiration Time") tenders or exchanges may be made pursuant to such
tender or exchange offer (as it shall have been amended) that exceeds the
Current Market Price of the Common Stock on the Trading Day next succeeding
the Expiration Time, and in which, as of the Expiration Time, the Board of
Directors of the Company is recommending acceptance of the offer, the
Settlement Rate shall be increased so that the same shall equal the price
determined by multiplying the Settlement Rate in effect immediately prior to
the Expiration Time by a fraction of which the numerator shall be the sum of
(x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any
maximum specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of shares of Common
Stock of the Company outstanding (less any Purchased Shares) on the Expiration
Time and the Current Market Price of the Common Stock on the Trading Day next
succeeding the Expiration Time, and the denominator shall be the number of
shares of Common Stock of the Company outstanding (including any tendered or
exchanged shares) on the Expiration Time multiplied by the Current Market
Price of the Common Stock on the Trading Day next succeeding the Expiration
Time, such increase to become effective immediately prior to the opening of
business on the day following the Expiration Time. In the event that such
Person is obligated to purchase shares pursuant to any such tender or exchange
offer, but such Person is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the
Settlement Rate shall again be adjusted to be the Settlement Rate which would
then be in effect if such tender or exchange offer had not been made.
Notwithstanding the foregoing, the adjustment described in this Section
5.06(f) shall not be made if, as of the Expiration Time, the offering
documents with respect to such offer disclose a plan or intention to cause the
Company to engage in a consolidation or merger of the Company or a sale of all
or substantially all of the assets of the Company.
(g) The "Current Market Price" per share of Common Stock on any
date of determination means the average of the daily Closing Prices for the
five consecutive Trading Days ending on and including the date of
determination of the Current Market Price (appropriately adjusted to take into
account the occurrence during said five-day period of any event that results in
an adjustment of the Settlement Rate); provided, however, that if the Closing
Price for the Trading Day next following such five-day period (the "next-day
closing price") is less than 95% of such average, then the Current Market
Price per share of Common Stock on such date of determination will be the
next-day closing price; and provided, further, that, for purposes of
calculating the Current Market Price in connection with any settlement of
Securities or any determination of an amount in cash payable in lieu of a
fraction of a share of Common Stock, if any adjustment of the Settlement Rate
pursuant to this Section 5.06 is effective as of any date during the period
beginning during the period beginning on the day after the date of
determination of the Current Market Price and ending on the date on which
Securities are to be settled with Common Stock, then the Current Market Price
as determined pursuant to the foregoing will be appropriately adjusted to
reflect such adjustment. If the Current Market Price is adjusted pursuant to
the immediately preceding proviso as a result of the effectiveness of an
adjustment to the Settlement Rate but the event requiring an adjustment of the
Settlement Rate does not occur prior to the settlement of the Securities, then
the Company may in its sole discretion elect to defer the following until
after the occurrence of such event: (1) issuing to the Holder of any
Securities settled the additional shares of Common Stock issuable upon such
settlement over and above the shares of Common Stock issuable upon such
settlement on the basis of the Current Market Price prior to adjustment; and
(2) paying to such Holder any amount in cash in lieu of a fractional share of
Common Stock pursuant to this Section 5.11. Notwithstanding the foregoing
provision of this Section 5.08(g) for purposes of any computation under
Section 5.6(f), the Current Market Price of the Common Stock of the Company on
any date shall be deemed to be the average of the daily Closing Prices per
share of Common Stock for such day and the next two succeeding Trading Days.
A "Trading Day" means a day on which the Common Stock (i) is not suspended
from trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (ii) has traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of the
Common Stock.
(h) Anything in this Section 5.06 notwithstanding, the Company
shall be entitled to make such upward adjustments in the Settlement Rate, in
addition to those required by this Section 5.06, as the Company in its
discretion shall determine to be advisable, in order that any stock dividends,
subdivision of shares, distribution of rights to purchase stock or securities,
or a distribution of securities convertible into or exchangeable for stock (or
any transactions which could be treated as any of the foregoing transactions
pursuant to Section 305 of the Internal Revenue Code of 1986, as amended)
hereafter made by the Company to its stockholders shall not be taxable.
(i) In any case in which this Section 5.06 shall require that an
adjustment in the Settlement Rate as a result of any event become effective at
the opening of business on the Business Day next following a Record Date and
Mandatory Acceleration Date or the Final Settlement Date pursuant to Sections
5.08(b) and 5.01, respectively, occurs after such Record Date, but before the
occurrence of such event, the Company may in its sole discretion elect to defer
the following until after the occurrence of such event:
(i) issuing to the Holder of any Securities settled the
additional shares of Common Stock issuable upon such settlement over and above
the shares of Common Stock issuable upon such settlement on the basis of the
Settlement Rate prior to adjustment; and
(ii) paying to such holder any amount in cash in lieu of a
fractional share of Common Stock pursuant to Section 5.11.
Section 5.07. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided,
the Company shall:
(i) forthwith compute the adjusted Settlement Rate in
accordance with Section 5.06 and prepare a certificate signed by the Chief
Executive Officer, the Chairman, the President, any Vice President or the
Treasurer of the Company setting forth the adjusted Settlement Rate, the
method of calculation thereof in reasonable detail and the facts requiring
such adjustment and upon which such adjustment is based, and file such
certificate forthwith with the Agent for the Securities and the transfer agent
or agents for the Common Stock; and
(ii) mail a notice stating that the Settlement Rate has been
adjusted, the facts requiring such adjustment and upon which such adjustment
is based and setting forth the adjusted Settlement Rate to the Agent and the
Holders of record of the outstanding Securities at or prior to the time the
Company mails an interim statement to its stockholders covering the
quarter-yearly period during which the facts requiring such adjustment
occurred, but in any event within 45 days of the end of such quarter-yearly
period.
(b) The Agent shall not at any time be under any duty or
responsibility to any holder of Securities to determine whether any facts exist
which may require any adjustment of the Settlement Rate, or with respect to
the nature or extent or calculation of any such adjustment when made, or with
respect to the method employed in making the same. The Agent shall not be
accountable with respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property, which may at the
time be issued or delivered with respect to any Purchase Contract; and the
Agent makes no representation with respect thereto. The Agent shall not be
responsible for any failure of the Company to issue, transfer or deliver any
shares of Common Stock pursuant to a Purchase Contract or to comply with any
of the duties, responsibilities or covenants of the Company contained in this
Article.
Section 5.08. Acceleration; Notice.
(a) Prior to a Mandatory Acceleration Date, a Bankruptcy Event
Date, Sale of Assets Date or the Final Settlement Date, the Company shall have
the right at any time or from time to time to accelerate, in whole or in part,
the outstanding Securities (a "Company Acceleration") (subject to the notice
provisions set forth in this Section). The Company may not exercise its right
to accelerate the Securities unless the Current Market Price determined as of
the second Business Day immediately preceding the Notice Date is equal to or
exceeds the Company Acceleration Price applicable to such Notice Date. Upon
the effective date of such acceleration ( a "Company Acceleration Date"), the
Agent shall sell, pursuant to Section 4.02(d), at the direction of the Company
subject to receipt thereof, the Treasury Notes underlying the Securities
accelerated unless the Holder has paid the Stated Amount in cash in accordance
with an election made pursuant to Section 4.2(b). The Company shall then
deliver to the Agent for the benefit of the Holders thereof in exchange for
each such Security accelerated, (i) a number of fully paid and non-assessable
shares of Common Stock determined by dividing the Company Acceleration Price
in effect on the Company Acceleration Date by the Current Market Price of the
Common Stock determined as of the second Business Day immediately preceding
the Notice Date applicable to such Company Acceleration Date and (ii) an
amount in cash equal to all accrued and unpaid Contract Fees and Deferred
Contract Fees, if any, on such Security to and including such Company
Acceleration Date (and Contract Fees and Deferred Contract Fees, if any, shall
cease to accrue on each Security accelerated as of such date). Accrued
interest on the Treasury Notes (and premium in respect of the sale of Treasury
Notes) shall be paid to Holders as provided in Section 4.02(d).
(b) Immediately prior to the effectiveness of a merger or
consolidation of, or a statutory share exchange involving, the Company that
results in the conversion or exchange of the Common Stock into, or the right
to receive, other securities or other property (whether of the Company or any
other entity) (any such merger, consolidation or share exchange being referred
to herein as a "Merger or Consolidation"), each outstanding Security shall
automatically be settled for (a "Mandatory Acceleration"), unless sooner
accelerated:
(i) fully paid and non-assessable shares of Common Stock at
the Settlement Rate in effect on the effective time on the date of any Merger
or Consolidation (the "Mandatory Acceleration Date"); plus
(ii) an amount in cash equal to all accrued and unpaid
Contract Fees and Deferred Contract Fees, if any, on such Securities to but
excluding the Mandatory Acceleration Date (and Contract Fees and Deferred
Contract Fees shall cease to accrue as of the Mandatory Acceleration Date);
plus
(iii) an amount in cash (except as provided below) initially
equal to $8.664, declining by $.008060 on each day following November 6, 1996
(computed on the basis of a 360-day year of twelve 30-day months) to $.4831 on
August 31, 1999 and equal to zero thereafter, in each case determined with
reference to the Mandatory Acceleration Date.
Accrued interest on the Treasury Notes shall be paid to Holders
as provided in Section 4.02(d). At the option of the Company and provided that
the Company has sufficient authorized and reserved shares of Common Stock, it
may deliver to the Agent, for the benefit of the Holders, on the Mandatory
Acceleration Date in lieu of some or all of the cash consideration described in
clause (iii) above, fully paid and non-assessable shares of Common Stock. The
number of shares of Common Stock to be delivered in lieu of any cash
consideration described in such clause (iii) shall be determined by dividing
the amount of cash consideration that the Company has elected to deliver in
Common Stock by the Current Market Price of the Common Stock determined as of
the second Business Day immediately preceding the Notice Date applicable to
such Mandatory Acceleration Date.
(c) The Company will provide notice of the Final Settlement Date or
any earlier Acceleration of Securities (including any potential acceleration
upon the effectiveness of a Merger or Consolidation) to the Agent and Holders
of record of the Securities to be accelerated not less than 30 nor more than 60
days prior to the Final Settlement Date or the date fixed for such
Acceleration; provided, however, that if the effectiveness of a Merger or
Consolidation makes it impracticable to provide at least 30 days' notice, the
Company shall provide such notice as soon as practicable prior to such
effectiveness. Such notice shall be provided by mailing notice of the Final
Settlement Date or any earlier Acceleration first class postage prepaid, to
each Holder of record of the Securities to be accelerated, at such Holder's
address as it appears on the Security Register of the Company, and by
publishing notice thereof in The Wall Street Journal or The New York Times or,
if neither such newspaper is then being published, any other daily newspaper
of national circulation (each, an "Authorized Newspaper"). Each such mailed
or published notice shall state, as appropriate, the following:
(i) the Final Settlement Date or the Acceleration Date;
(ii) the number of Securities to be accelerated and, if less
than all the Securities held by any Holder are to be accelerated, the number
of such Securities to be accelerated;
(iii) the Settlement Rate or the Company Acceleration Price, as
applicable, and, if applicable, the Current Market Price to be used to
calculate the number of shares of Common Stock deliverable upon Acceleration;
(iv) whether the Company is exercising any option to deliver
shares of Common Stock in lieu of any cash (in the case of a Mandatory
Acceleration) and the Current Market Price to be used to calculate the number
of such shares of Common Stock;
(v) the place or places where certificates for such
Securities are to be surrendered for Acceleration;
(vi) whether the Company is depositing with a bank or trust
company on or before the Acceleration Date, the shares of Common Stock, and
cash, if any, payable by the Company pursuant to this Section 5.08 and the
proposed date of such deposit; and
(vii) the amount of accrued and unpaid Contract Fees (and
Deferred Contract Fees, if any) payable per Security to be accelerated, and
that Contract Fees and Deferred Contract Fees on Securities to be accelerated
will cease to accrue on such Acceleration Date.
(d)The Company's obligation to deliver shares of Common Stock
and provide funds in accordance with this Section 5.8 shall be deemed fulfilled
if, on or before an Acceleration Date, the Company shall deposit, with a bank
or trust company having an office or agency and doing business in the Borough
of Manhattan in The City of New York and having a capital and surplus of at
least $50,000,000, such number of shares of Common Stock and funds as are
required to be delivered by the Company pursuant to this Section 5.8 upon the
occurrence of the related Acceleration (including the payment of fractional
share amounts), together with funds sufficient to pay all accrued and unpaid
Contract Fees and Deferred Contract Fees, if any, to be settled as required by
this Section 5.08, in trust for the account of the Holders of the Securities
to be settled (and so as to be and continue to be available therefor), with
irrevocable written instructions and authority to such bank or trust company
that such shares and funds be delivered upon settlement of the Securities.
Any shares of Common Stock and funds so deposited and unclaimed by Holders of
Securities at the end of six years after such Acceleration Date (together with
any interest thereon which shall be allowed by the bank or trust company with
which such deposit was made) shall be paid by such bank or trust company to
the Company, after which the Holder or Holders of such Securities so settled
shall look only to the Company for delivery of such shares of Common Stock or
funds.
Each holder of Securities to be settled shall surrender the
certificates evidencing such shares to the Company at the place designated in
the notice of such Acceleration and shall thereupon be entitled to receive
certificates evidencing shares of Common Stock, and cash, if any, payable
pursuant to this Section 5.8, following such surrender and following the date
of such Acceleration. In case fewer than all the Securities represented by
any such surrendered certificate are accelerated, a new certificate shall be
issued at the expense of the Company representing the unaccelerated
Securities. If such notice of Acceleration shall have been duly given, and if
on the date fixed for Acceleration, shares of Common Stock and funds, if any,
necessary for the settlement of Securities on such date shall have been either
set aside by the Company separate and apart from its other funds or assets in
trust for the account of the Holders of the Securities so to be settled (and
so as to be and continue to be available therefor) or deposited with a bank or
trust company as provided above, then, notwithstanding that the certificates
evidencing any Securities settled shall not have been surrendered, the
Securities represented thereby so settled shall be deemed no longer
outstanding, Contract Fees and Deferred Contract Fees, if any, with respect to
the Securities so settled shall cease to accrue after the date fixed for
Acceleration and all rights with respect to the Securities so settled shall
forthwith after such date cease and terminate, except for the right of the
Holders to receive the shares of Common Stock and cash, if any, payable
pursuant to this Section 5.8, without interest upon surrender of their
certificates therefor.
(e) If fewer than all outstanding Securities are to be
accelerated, the Securities to be accelerated shall be selected by the Agent
by lot.
Section 5.09. Bankruptcy Event or Sale of Assets; Notice.
The Purchase Contracts and the obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
of the Holders to receive and the obligation of the Company to pay any Contract
Fees or any Deferred Contract Fees, shall immediately and automatically
terminate, without the necessity of any notice or action by any Holder, the
Agent or the Company, if, on or prior to the Final Settlement Date or an
earlier Acceleration Date with respect to any particular Security, a Bankruptcy
Event or Sale of Assets shall have occurred; provided that, in the event of a
Sale of Assets, the Company will pay all accrued and unpaid Contract Fees and
Deferred Contract Fees, if any, to Holders on the tenth Business Day following
the Sale of Assets Date. Upon and after the occurrence of a Bankruptcy Event
or Sale of Assets, the Securities shall thereafter represent the right to
receive and take possession of the Treasury Notes forming a part of such
Securities in accordance with the provisions of Section 4.2(a) and the Pledge
Agreement. Upon the occurrence of a Bankruptcy Event or Sale of Assets, the
Company shall promptly but in no event after two Business Days thereafter give
written notice to the Agent, the Collateral Agent and to the Holders, at their
addresses as they appear in the Security Register.
Section 5.10. Holder's Early Settlement.
(a) Subject to and upon compliance with the provisions of this
Section 5.10, at the option of the Holder thereof, any Purchase Contracts in
integral multiples of 400 Securities may be settled early ("Holder's Early
Settlement") as provided herein. In order to exercise the right to effect
Holder's Early Settlement, the Holder of the Security Certificate shall deliver
such Security Certificate to the Agent at the Corporate Trust Office duly
endorsed for transfer to the Company or in blank with the form (or a writing
substantially similar to the form) of Election to Settle Early on the reverse
thereof duly completed and accompanied by payment in the form of a certified
or cashier's check payable to the order of the Company in immediately
available funds in a U.S. dollar amount or by wire transfer of Federal funds
(the "Holder's Early Settlement Amount") equal to the product of (A) the
Stated Amount times (B) the number of Purchase Contracts with respect to which
the Holder has elected to effect Holder's Early Settlement. If such delivery
is made with respect to any Securities during the period from the close of
business on any Record Date next preceding any Payment Date to the opening of
business on such Payment Date, the amount equal to the sum of (x) the Contract
Fees and Deferred Contract Fees, if any, payable on such Payment Date with
respect to such Purchase Contracts plus (y) the interest on the related
Treasury Notes payable on such Payment Date shall be paid on the next
succeeding Payment Date applicable to the Prepaid Securities. If the
foregoing requirements are first satisfied with respect to Purchase Contracts
underlying any Securities at or prior to 5:00 p.m., New York City time, on a
Business Day, such day shall be the "Holder's Early Settlement Date" with
respect to such Securities and if such requirements are first satisfied after
5:00 p.m., New York City time, on a Business Day or on a day that is not a
Business Day, the "Holder's Early Settlement Date" with respect to such
Securities shall be the next succeeding Business Day.
(b) The Company shall cause the Treasury Notes deliverable upon a
Holder's Early Settlement to be released from the Pledge by the Collateral
Agent and transferred to the Agent, for delivery to the Holder thereof or its
designee, no later than 5:00 p.m. on the third Business Day after the
applicable Holder's Early Settlement Date.
(c) Upon Holder's Early Settlement and subject to receipt from the
Collateral Agent of the Treasury Notes, the Agent shall, in accordance with
the written instructions provided by the Holder thereof on the form (or a
writing substantially similar to the form) of Election to Settle Early on the
reverse of the Security Certificate evidencing the related Securities, transfer
the Treasury Notes forming a part of such Securities to the applicable Holder
as provided in paragraph (b) above.
(d)Upon a Holder's Early Settlement, the Company shall issue and
deliver to the Agent at the Corporate Trust Office a certificate or
certificates representing a face amount of Prepaid Securities equal to the
aggregate Stated Amount of the Securities subject to such Holder's Early
Settlement and bearing all rights in respect of accrued and unpaid Contract
Fees and Deferred Contract Fees, if any; and the Agent shall transfer such
Prepaid Securities to the Holders no later than 5:00 p.m. on the third
Business Day after the applicable Holder's Early Settlement Date.
(e) Upon the transfer of Treasury Notes as provided in paragraph
(c) of this Section and the delivery of Prepaid Securities as provided in
paragraph (d) of this Section, the Purchase Contract which has been thereby
settled shall cease to be in effect.
(f) In the event that a Holder's Early Settlement is effected with
respect to less than all the Securities evidenced by a Security Certificate
upon such Holder's Early Settlement, the Company shall execute and the Agent
shall authenticate, countersign and deliver to the Holder thereof, at the
expense of the Company, a Security Certificate evidencing the Securities as to
which Holder's Early Settlement was not effected.
Section 5.11. No Fractional Shares.
No fractional shares or scrip representing fractional shares of
Common Stock shall be issued or delivered on the Final Settlement Date or
earlier Acceleration Date upon settlement of the Purchase Contracts or with
respect to the payment of any amounts in shares of Common Stock pursuant to
clause (iii) of Section 5.8(b) on a Mandatory Acceleration (if the Company
elects to pay such amounts in shares of Common Stock in lieu of cash). If
Security Certificates evidencing more than one Purchase Contract shall be
surrendered for settlement at one time by the same Holder, the number of full
shares of Common Stock which shall be delivered upon settlement shall be
computed on the basis of the aggregate number of Purchase Contracts evidenced
by the Security Certificates so surrendered. Instead of any fractional share of
Common Stock which would otherwise be deliverable upon settlement of any
Purchase Contracts on the Final Settlement Date or an earlier Acceleration
Date or with respect to the payment of any amounts in shares of Common Stock
pursuant to clause (iii) of Section 5.8(b) on a Mandatory Acceleration (if the
Company elects to pay such amounts in shares of Common Stock in lieu of cash),
the Company, through the Agent, shall make a cash payment in respect of such
fractional interest in an amount equal to the value of such fractional shares
at the Current Market Price of the Common Stock determined as of the second
Business Day immediately preceding the relevant Notice Date or Final
Settlement Date, as applicable. The Company shall provide the Agent from time
to time with sufficient funds to permit the Agent to make all cash payments
required by this Section 5.11 in a timely manner.
Section 5.12. Charges and Taxes.
The Company will pay all stock transfer and similar taxes
attributable to the initial issuance and delivery of the shares of Common
Stock pursuant to the Purchase Contracts and in payment of any amounts in
shares of Common Stock pursuant to clause (iii) of Section 5.8(b) (in the case
of the Company's election to pay such amounts in Common Stock upon a Mandatory
Acceleration) or the Company Acceleration Prices; provided, however, that the
Company shall not be required to pay any such tax or taxes which may be
payable in respect of any exchange of or substitution for a Security
Certificate evidencing a Purchase Contract or any issuance of a share of
Common Stock in a name other than that of the registered Holder of a Security
Certificate surrendered in respect of the Purchase Contracts evidenced
thereby, other than in the name of the Agent, as custodian for such Holder,
and the Company shall not be required to issue or deliver such share
certificates or Security Certificates unless or until the Person or Persons
requesting the transfer or issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
ARTICLE 6
Remedies
Section 6.01. Unconditional Right of Holders to Receive
Contract Fees and Purchase Common Stock.
The Holder of any Security shall have the right, which is
absolute and unconditional (subject to the right of the Company to defer
payment thereof pursuant to Section 5.3), to receive payment of each
installment of the Contract Fees with respect to the Purchase Contract
constituting a part of such Security on the respective Payment Date for such
Security and to purchase Common Stock pursuant to the terms of such Purchase
Contract and, in each such case, to institute suit for the enforcement of any
such payment and right to purchase Common Stock, and such rights shall not be
impaired without the consent of such Holder.
Section 6.02. Restoration of Rights and Remedies.
If any Holder of Securities has instituted any proceeding to
enforce any right or remedy under this Agreement and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company and such Holder shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of such Holder shall continue as though no such proceeding had been
instituted.
Section 6.03. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement of
mutilated, destroyed, lost or stolen Security Certificates in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Holders of Securities is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 6.04. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or
remedy shall impair any such right or remedy or constitute a waiver of any
such right. Every right and remedy given by this Article or by law to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
Section 6.5. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of any
Security by his acceptance of the Security Certificate evidencing such
Security shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Agreement, or in any suit against the Agent for any action taken, suffered or
omitted by it as Agent, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided
that the provisions of this Section shall not apply to any suit instituted by
the Company, to any suit instituted by the Agent, to any suit instituted by
any Holder of Securities, or group of Holders, holding in the aggregate more
than 10% of the Outstanding Securities, or to any suit instituted by any
Holder for the enforcement of the payment of the interest on any Treasury Note
or the Contract Fees or Deferred Contract Fees, if any, on any Purchase
Contract on or after the respective Payment Date therefor constituting a part
of the Securities held by such Holder, or for enforcement of the right to
purchase shares of Common Stock under the Purchase Contracts constituting a
part of the Securities held by such Holder.
Section 6.06. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Agreement; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Agent or the Holders,
but will suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE 7
The Agent
Section 7.01. Certain Duties and Responsibilities.
(a) (i) The Agent undertakes to perform, with respect to the
Securities, such duties and only such duties as are specifically set forth in
this Agreement and those duties which relate to the Agent in the Pledge
Agreement, and no implied covenants or obligations shall be read into this
Agreement against the Agent;
(ii) in the absence of bad faith or negligence on its part,
the Agent may, with respect to the Securities, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Agent and conforming to the
requirements of this Agreement, but in the case of any certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Agent, the Agent shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Agreement
(but need not confirm or investigate the accuracy of mathematical calculations
stated therein); and
(iii) in case of a Bankruptcy Event, the Agent shall exercise
such of the rights and powers vested in it by this Agreement, and use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.
(b) No provision of this Agreement shall be construed to relieve
the Agent from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(i) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(ii) the Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that
the Agent was negligent in ascertaining the pertinent facts; and
(iii) no provision of this Agreement shall require the Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk is not
reasonably assured to it.
(c) Whether or not therein expressly so provided, every provision
of this Agreement relating to the conduct or affecting the liability of or
affording protection to the Agent shall be subject to the provisions of this
Section.
Section 7.02. Notice of Default.
Within 30 days after the occurrence of any default by the
Company hereunder, of which a Responsible Officer of the Agent has actual
knowledge, the Agent shall transmit by mail to all Holders of Securities, as
their names and addresses appear in the Security Register, notice of such
default hereunder, unless such default shall have been cured or waived.
Section 7.03. Certain Rights of Agent.
Subject to the provisions of Section 7.10:
(a) the Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Agent (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate of the Company;
(d) the Agent may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Agent, in its discretion, may make reasonable further inquiry or investigation
into such facts or matters related to the issuance of the Securities and the
execution, delivery and performance of the Purchase Contracts as it may see
fit, and, if the Agent shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and promises
of the Company, personally or by agent or attorney at the sole cost of the
Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation;
(f) the Agent may execute any of its powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys or an
Affiliate and the Agent shall not be responsible for any misconduct or
negligence on the part of any agent or attorney or an Affiliate appointed with
due care by it hereunder;
(g) the Agent shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request or direction of
any of the Holders pursuant to this Agreement, unless such Holders shall have
offered to the Agent reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction; and
(h) the Agent shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
Section 7.04. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Security Certificates
shall be taken as the statements of the Company and the Agent assumes no
responsibility for their accuracy. The Agent makes no representations as to
the validity or sufficiency of either this Agreement or of the Securities, or
of the Pledge Agreement or the Pledge. The Agent shall not be accountable for
the use or application by the Company of the proceeds in respect of the
Purchase Contracts.
Section 7.05. May Hold Securities.
Any Security Registrar or any other agent of the Company, or the
Agent and its Affiliates, in their individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with the Company,
the Collateral Agent or any other Person with the same rights it would have if
it were not Security Registrar or such other agent, or the Agent.
Section 7.06. Money Held in Custody.
Money held by the Agent in custody hereunder need not be
segregated from the other funds except to the extent required by law. The
Agent shall be under no obligation to invest or pay interest on any money
received by it hereunder except pursuant to the provisions of Section 4.1 or
as otherwise agreed in writing with the Company.
Section 7.07. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Agent from time to time reasonable compensation
for all services rendered by it hereunder as the Company and the Agent shall,
from time to time, agree in writing (which compensation shall be limited by
any applicable provisions of law);
(b) except as otherwise expressly provided herein, to reimburse the
Agent upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Agent in accordance with any provision of this
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
(c) to indemnify the Agent and any predecessor Agent for, and to
hold each of them harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of its duties hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder;
(d) anything in this Agreement to the contrary notwithstanding, in
no event shall the Agent or its officers, employees or agents be liable under
this Agreement to any third party for indirect, special, punitive, or
consequential loss or damage of any kind whatsoever, including lost profits,
whether or not the likelihood of such loss or damage was known to the Agent,
or any of them, incurred without any act or deed that is found to be
attributable to negligence on the part of the Agent; and
(e) The provisions of this Section 7.07 shall survive the
termination of this Agreement.
Section 7.08. Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall be a
Company organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having (or being a member of a bank
holding company having) a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal or State
authority and having a Corporate Trust Office in the Borough of Manhattan, The
City of New York, if there be such a corporation in the Borough of Manhattan,
The City of New York qualified and eligible under this Article and willing to
act on reasonable terms. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 7.09. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 7.10.
(b) The Agent may resign at any time by giving written notice
thereof to the Company 60 days prior to the effective date of such
resignation. If the instrument of acceptance by a successor Agent required by
Section 7.10 shall not have been delivered to the Agent within 30 days after
the giving of such notice of resignation, the resigning Agent may petition any
court of competent jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders of
a majority in number of the Outstanding Securities delivered to the Agent and
the Company.
(d) If at any time
(i) the Agent fails to comply with Section 310(b) of the TIA,
as if the Agent were an indenture trustee under an indenture qualified under
the TIA, after written request therefor by the Company or by any holder who
has been a bona fide Holder of a Security for at least six months, or
(ii) the Agent shall cease to be eligible under Section 7.8
and shall fail to resign after written request therefor by the Company or by
any such Holder, or
(iii) the Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Agent or of its property
shall be appointed or any public officer shall take charge or control of the
Agent or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution
may remove the Agent, or (ii) any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Agent and the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Agent and
shall comply with the applicable requirements of Section 7.10. If no successor
Agent shall have been so appointed by the Company and accepted appointment in
the manner required by Section 7.10, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent to
give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities as their names
and addresses appear in the Security Register. Each notice shall include the
name of the successor Agent and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Agent,
every such successor Agent so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Agent an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Agent
shall become effective and such successor Agent, without any further act, deed
or conveyance, shall become vested with all the rights, powers, agencies and
duties of the retiring Agent; but, on the request of the Company or the
successor Agent, such retiring Agent shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Agent all the
rights, powers and trusts of the retiring Agent and shall duly assign, transfer
and deliver to such successor Agent all property and money held by such
retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the
time of such acceptance such successor Agent shall be qualified and eligible
under this Article.
Section 7.11. Preservation of Information; Communications to
Holders. (a) The Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by the
Agent in its capacity as Security Registrar.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Agent, and furnish to the Agent reasonable proof that
each such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their
rights under this Agreement or under the Securities and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Agent shall, within five Business Days after the receipt
of such application, afford such applicants access to the information
preserved at the time by the Agent in accordance with Section 7.11(a).
(c) Every Holder of Securities, by receiving and holding the
Security Certificates evidencing the same, agrees with the Company and the
Agent that none of the Company, the Agent nor any agent of any of them shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section 7.11(b),
regardless of the source from which such information was derived.
Section 7.12. No Obligations of Agent.
Except to the extent otherwise provided in this Agreement, the
Agent assumes no obligations and shall not be subject to any liability under
this Agreement, the Pledge Agreement or any Purchase Contract in respect of the
obligations of the Holder of any Security thereunder. The Company agrees, and
each Holder of a Security Certificate, by his acceptance thereof, shall be
deemed to have agreed, that the Agent's execution of the Security Certificates
on behalf of the Holders shall be solely as agent and attorney-in-fact for the
Holders, and that the Agent shall have no obligation to perform such Purchase
Contracts on behalf of the Holders, except to the extent expressly provided in
Article 5 hereof.
Section 7.13. Tax Compliance.
(a) The Agent, at the direction of the Company, will comply with
all applicable certification, information reporting and withholding (including
"backup" withholding) requirements imposed by applicable tax laws, regulations
or administrative practice with respect to (i) any payments made with respect
to the Securities or (ii) the issuance, delivery, holding, transfer,
redemption or exercise of rights under the Securities. Such compliance shall
include, without limitation, the preparation and timely filing of required
returns and the timely payment of all amounts required to be withheld to the
appropriate taxing authority or its designated agent.
(b) The Agent shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 7.1(a)(ii) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available, on
written request, to the Company or to its authorized representative within a
reasonable period of time after receipt of such request.
Section 7.14. Merger, Conversion, Consolidation or Succession
to Business of Agent.
Any corporation into which the Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Agent shall be a party or any
corporation succeeding to all or substantially all of the corporate trust
business of the Agent, shall be the successor of the Agent hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article
7, without the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Agent then in office, any successor
by merger, conversion or consolidation to such authenticating Agent may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Agent had itself authenticated such Securities.
ARTICLE 8
Supplemental Agreements
Section 8.01. Supplemental Agreements Without Consent of
Holders.
Without the consent of any Holders, the Company and the Agent,
at any time and from time to time, may enter into one or more agreements
supplemental hereto, in form satisfactory to the Company and the Agent, for
any of the following purposes:
(a) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the obligations of the Company
herein and in the Security Certificates; or
(b) to add covenants of the Company for the benefit of the Holders,
or to surrender any right or power herein conferred upon the Company; or
(c) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent or Collateral Agent; or
(d) to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein, or to make
any other provisions with respect to such matters or questions arising under
this Agreement, provided such action shall not adversely affect the interests
of the Holders.
Section 8.02. Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% of the
Outstanding Securities, by Act of said Holders delivered to the Company and
the Agent, the Company when authorized by a Board Resolution, and the Agent
may enter into an agreement or agreements supplemental hereto for the purpose
of modifying in any manner the terms of the Securities, or the provisions of
this Agreement or the Pledge Agreement or the rights of the Holders in respect
of the Securities; provided, however, that no such supplemental agreement
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(a) change any Payment Date;
(b) change the amount or type of Treasury Notes underlying a
Security, impair the right of the Holder of any Security to receive interest
payments on the underlying Treasury Notes or otherwise adversely affect the
Holder's rights in or to such Treasury Notes;
(c) change the place or currency of payment or reduce any Contract
Fees or any Deferred Contract Fees;
(d) impair the right to institute suit for the enforcement of any
Purchase Contract;
(e) reduce the amount of Common Stock purchasable on settlement of
any Purchase Contract, increase the price to purchase shares of Common Stock
upon settlement of any Purchase Contract, or change the Company Acceleration
Price or change the Final Settlement Date; or
(f) reduce the above-stated percentage of the Outstanding
Securities the consent of whose Holders is required for the modification or
amendment of the provisions of the Purchase Contracts, this Agreement or the
Pledge Agreement.
It shall not be necessary for any Act of Holders under this
Section 8.2 to approve the particular form of any proposed modification or
amendment, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 8.03. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by,
any supplemental agreement permitted by this Article or the modifications
thereby of the agencies created by this Agreement, the Agent shall be entitled
to receive and (subject to Section 7.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
agreement is authorized or permitted by this Agreement. The Agent may, but
shall not be obligated to, enter into any such supplemental agreement which
affects the Agent's own rights, duties or immunities under this Agreement or
otherwise.
Section 8.04. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this
Article, this Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this Agreement for all purposes;
and every Holder of Security Certificates theretofore or thereafter
authenticated, executed on behalf of the Holders and delivered hereunder shall
be bound thereby.
Section 8.05. Reference to Supplemental Agreements.
Security Certificates authenticated, executed on behalf of the
Holders and delivered after the execution of any supplemental agreement
pursuant to this Article may, and shall if required by the Agent, bear a
notation in form approved by the Agent as to any matter provided for in such
supplemental agreement. If the Company shall so determine, new Security
Certificates so modified as to conform, in the opinion of the Agent and the
Company, to any such supplemental agreement may be prepared and executed by
the Company and authenticated, executed on behalf of the Holders and delivered
by the Agent in exchange for Outstanding Security Certificates.
ARTICLE 9
Covenants
Section 9.01. Performance under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders
from time to time of the Securities that it will duly and punctually perform
its obligations under the Purchase Contracts in accordance with the terms of
the Purchase Contracts and this Agreement.
Section 9.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City
of New York an office or agency where Security Certificates may be presented or
surrendered for acquisition of shares of Common Stock upon the Final
Settlement Date or earlier Acceleration Date and for transfer of Treasury
Notes upon occurrence of a Bankruptcy Event, Sale of Assets or a Holder's
Early Settlement, where Security Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Agreement may be served. The
Company will give prompt written notice to the Agent of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Agent with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and
the Company hereby appoints the Agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where Security Certificates may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the Agent of any such
designation or rescission and of any change in the location of any such other
office or agency. The Company hereby designates as the place of payment for
the Securities the Corporate Trust Office and appoints the Agent at its
Corporate Trust Office as paying agent in such city.
Section 9.03. Company to Reserve Common Stock.
The Company shall at all times prior to the Final Settlement
Date or an applicable Acceleration Date reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock the full
number of shares of Common Stock issuable against tender of payment in respect
of all Purchase Contracts constituting a part of the Securities evidenced by
Outstanding Security Certificates.
Section 9.04. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may
be issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable.
Section 9.05. Statements of Officers of the Company as to
Default.
The Company will deliver to the Agent, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions hereof, and if the Company shall
be in default, specifying all such defaults and the nature and status thereof
of which they may have knowledge.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
SUNAMERICA INC.
Attested by:
By:___________________________________
_____________________________ Name:
Title Title:
THE BANK OF NEW YORK
By:___________________________________
Name:
Title:
EXHIBIT A
SUNAMERICA INC.
8.5% PREMIUM EQUITY REDEMPTION
CUMULATIVE SECURITY UNITS
(STATED AMOUNT $37.50 PER SECURITY)
CUSIP NO. 866930860
No. Securities
This Security Certificate certifies that is
the registered Holder of the number of Securities set forth above. Each
Security represents (i) ownership by the Holder of 7.5% United States Treasury
Notes due October 31, 1999 ("Treasury Notes") with a principal amount equal to
the Stated Amount, subject to the Pledge of such Treasury Notes by such Holder
pursuant to the Pledge Agreement, and (ii) the rights and obligations of the
Holder under one Purchase Contract with SunAmerica Inc., a Maryland
corporation (the "Company"). The Treasury Notes represented by this Security
Certificate were acquired by the Underwriters on behalf of the Holders with
the proceeds of the offering of this Security Certificate and other funds
provided by the Company and are being conveyed to the Holder of this Security
Certificate and pledged pursuant to the Pledge Agreement simultaneously
therewith.
Pursuant to the Pledge Agreement, the Treasury Notes
constituting part of each Security evidenced hereby have been pledged to the
Collateral Agent to secure the obligations of the Holder under the Purchase
Contract comprising a portion of such Security.
The Pledge Agreement provides that all payments of principal
of, or interest on, any Treasury Notes comprising a portion of the Securities
received by the Collateral Agent shall be paid by the Collateral Agent by wire
transfer in same day funds no later than 12:00 noon, New York City time, on the
Business Day such payment is received by the Collateral Agent (provided that
in the event such payment is received by the Collateral Agent on a day that is
not a Business Day, then such payment shall be made no later than 10:00 a.m.,
New York City time, on the next succeeding Business Day) (i) in the case of
(A) interest payments and (B) any principal payments with respect to any
Treasury Notes that have been released from the Pledge pursuant to the Pledge
Agreement, to the Agent to the account designated by it for such purpose and
(ii) in the case of principal payments on any Pledged Treasury Notes (as
defined in the Pledge Agreement), to the Company, in full satisfaction of the
respective obligations of the Holders of the Securities of which such Pledged
Treasury Securities are a part under the Purchase Contracts forming a part of
such Securities. Interest on any Treasury Note forming part of a Security
evidenced hereby which is paid on any April 30 or October 31, commencing April
30, 1997 (a "Payment Date"), shall, subject to receipt thereof by the Agent
from the Collateral Agent, be paid to the Person in whose name this Security
Certificate (or a Predecessor Security Certificate) is registered at the close
of business on the Record Date next preceding such Payment Date. On the first
Payment Date, the Agent shall pay, subject to receipt from the Collateral
Agent, to the Holders the accrued interest on the Treasury Notes for the
period from November 1, 1996 to November 6, 1996 as part of the interest
payment on the Treasury Notes.
Each Purchase Contract evidenced hereby obligates the Holder of
this Security Certificate to purchase, and the Company to sell, on October 31,
1999 (the "Final Settlement Date"), at a price equal to $37.50 (the "Stated
Amount"), a number of shares of Common Stock, par value $1.00 per share
("Common Stock"), of the Company, equal to the Settlement Rate on the Final
Settlement Date, unless on or prior to the Final Settlement Date, there shall
have occurred a Bankruptcy Event, Sales of Assets, an Acceleration or a
Holder's Early Settlement with respect to the Security of which such Purchase
Contract is a part, all as provided in the Purchase Contract Agreement and
more fully described on the reverse hereof. The purchase price for the shares
of Common Stock purchased pursuant to each Purchase Contract evidenced hereby,
if not paid earlier pursuant to the terms of the Purchase Contract Agreement,
shall be paid on the Final Settlement Date by application of payment received
in respect of the principal of the Treasury Notes pledged to secure the
obligations under such Purchase Contract of the Holder of the Security of
which such Purchase Contract is a part.
The Company shall pay or accrue, on each Payment Date, in
respect of each Purchase Contract forming part of a Security evidenced hereby
an amount (the "Contract Fees") equal to 1.0% per annum of the Stated Amount,
computed on the basis of the actual number of days elapsed in a year of 365 or
366 days, as the case may be, subject to deferral at the option of the Company
as provided in the Purchase Contract Agreement and more fully described on the
reverse hereof; except that the Contract Fees payable on the first Payment
Date will be adjusted so that the Contract Fees payable on such date will be
$.122243 per Security. Subject to the provisions of the Purchase Contract
Agreement, such Contract Fees shall be payable to the Person in whose name
this Security Certificate (or a Predecessor Security Certificate) is
registered at the close of business on the Record Date next preceding such
Payment Date.
Interest on the Treasury Notes and the Contract Fees will be
payable at the office of the Agent in The City of New York or, at the option
of the Company, by check mailed to the address of the Person entitled thereto
as such address appears on the Security Register.
Reference is hereby made to the further provisions set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Agent by manual signature, this Security Certificate shall not
be entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
SUNAMERICA INC.
By:_________________________
Name:
Title:
Attested by:
_________________________________
Dated:
This is one of the Securities Certificates referred to in the within
mentioned Purchase Contract Agreement.
THE BANK OF NEW YORK
as Agent
By:_______________________________
Authorized Signatory
(Form of Reverse of Security Certificate]
Each Purchase Contract evidenced hereby is governed by a
Purchase Contract Agreement, dated as of November 6, 1996 (the "Purchase
Contract Agreement"), between the Company and The Bank of New York, as Purchase
Contract Agent (herein called the "Agent"), to which Purchase Contract
Agreement and supplemental agreements thereto reference is hereby made for a
description of the respective rights, limitations of rights, obligations,
duties and immunities thereunder of the Agent, the Company, and the Holders
and of the terms upon which the Security Certificates are, and are to be,
executed and delivered.
Each Purchase Contract evidenced hereby shall obligate the
Holder of this Security Certificate to purchase, and the Company to sell, on
the Final Settlement Date at a price equal to the Stated Amount, a number of
shares of Common Stock of the Company equal to the Settlement Rate on the Final
Settlement Date, unless, on or prior to the Final Settlement Date, there shall
have occurred a Bankruptcy Event, Sale of Assets, an Acceleration or a
Holder's Early Settlement with respect to the Security of which such Purchase
Contract is a part. The "Settlement Rate" is initially one share of Common
Stock, in each case subject to adjustment as provided in the Purchase Contract
Agreement. No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, as provided in the Purchase Contract
Agreement.
Unless a Holder settles the Purchase Contract evidenced hereby
through the early delivery of cash to the Agent in the manner described in the
Purchase Contract Agreement, the purchase price for the shares of Common Stock
purchased pursuant to each Purchase Contract shall be paid by application of
payments received by the Company on the Final Settlement Date or an earlier
Acceleration Date from, as the case may be, either (i) the Collateral Agent
pursuant to the Pledge Agreement in respect of the principal of the Treasury
Notes pledged to secure the obligations of the relevant Holder under such
Purchase Contract or (ii) the proceeds of the sale of the Treasury Notes
underlying the Holder's Securities pursuant to the provisions of the Purchase
Contract Agreement. Such application shall satisfy in full (whether or not the
principal amount of the Treasury Notes then equals the Stated Amount) the
obligations under such Purchase Contract of the Holder of this Security of
which such Purchase Contract is a part.
The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates therefor to
the Holder unless it shall have received payment in full of the aggregate
purchase price for the shares of Common Stock to be purchased thereunder in
the manner set forth in the Purchase Contract Agreement.
Subject to the next succeeding paragraph and the provisions of
the Purchase Contract Agreement, the Company shall pay by 12:00 noon New York
City time to the Agent, on each Payment Date, the Contract Fees payable in
respect of each Purchase Contract for the benefit of the Person in whose name
the Security Certificate (or one or more Predecessor Security Certificates)
evidencing such Purchase Contract is registered at the close of business on
the Record Date next preceding such Payment Date. The Contract Fees will be
payable at the office of the Agent in The City of New York maintained for that
purpose or, at the option of the Company, by check mailed to the address of
the Person entitled thereto at such address as it appears on the Security
Register.
The right to receive Contract Fees including accrued and unpaid
Contract Fees and Deferred Contract Fees, if any, shall terminate upon the
occurrence of a Bankruptcy Event, and the Company shall have no further
obligation with respect thereto.
The Company shall have the right, at any time prior to the Final
Settlement Date, an Acceleration Date applicable to a Holder's Securities or
Sale of Assets Date, to defer the payment of any or all of the Contract Fees
otherwise payable on any Payment Date (on a pro rata basis among all
Outstanding Securities), but only if the Company shall give the Holders and
the Agent written notice of its election to defer such payment (specifying the
amount to be deferred and the period of deferment) as provided in the Purchase
Contract Agreement. Any Contract Fees so deferred shall bear additional
Contract Fees thereon at the rate of 1.0% per annum (computed on the basis of
the actual number of days elapsed in a year of 365 or 366 days, as the case
may be), compounding on each succeeding Payment Date, until paid in full (such
deferred installments of Contract Fees together with the additional Contract
Fees accrued thereon, are referred to herein as the "Deferred Contract Fees").
Deferred Contract Fees shall be due on the next succeeding Payment Date except
to the extent that payment is deferred further in the notice of election
pursuant to the Purchase Contract Agreement. The Company may pay Deferred
Contract Fees in whole or in part on any Payment Date (on a pro rata basis
among all Outstanding Securities). No Contract Fees or Deferred Contract Fees
may be deferred to a date that is after the Final Settlement Date or a Sale of
Assets Date or, with respect to any particular Purchase Contract, the
Acceleration thereof.
In the event the Company elects to defer the payment of
Contract Fees on the Purchase Contract until the Final Settlement Date, a Sale
of Assets Date or a Company Acceleration Date or a Mandatory Acceleration Date
(or a date prior to such dates as set forth in its written notice referred to
in the preceding paragraph), the Company shall make a cash payment, on the
date such Deferred Contract Fees become due and payable, equal to the
aggregate amount of Deferred Contract Fees payable to a Holder.
In the event the Company exercises its option to defer the
payment of Contract Fees, then, until the Deferred Contract Fees have been
paid in full, the Company shall not declare or pay dividends on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchase or acquisitions of shares of Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit
plans now or hereafter in effect or the satisfaction by the Company of its
obligations pursuant to any contract or security now or hereafter outstanding
requiring the Company to purchase shares of Common Stock, (ii) as a result of
a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock, (iii) the purchase of
fractional shares in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged (iv) the payment of accrued dividends (and cash in lieu
of fractional shares) upon the conversion of any shares of preferred stock of
the Company as may be outstanding from time to time, in accordance with the
terms of such stock or (v) dividends on its capital stock paid in shares of
capital stock) or make any guarantee payments with respect to the foregoing.
The Purchase Contracts and the obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
of the Holders to receive and the obligation of the Company to pay any Contract
Fees or any Deferred Contract Fees, shall immediately and automatically
terminate, without the necessity of any notice or action by any Holder, the
Agent or the Company, if, on or prior to the Final Settlement Date or an
earlier Acceleration Date with respect to a particular Security, a Bankruptcy
Event or Sale of Assets shall have occurred; provided that, in the event of a
Sale of Assets, the Company will pay all accrued and unpaid Contract Fees and
Deferred Contract Fees, if any, to Holders on the tenth Business Day following
the Sale of Assets Date. Upon and after the occurrence of a Bankruptcy Event
or Sale of Assets, the Securities shall thereafter represent the right to
receive and take possession of the Treasury Notes forming a part of such
Securities in accordance with the provisions of the Purchase Contract
Agreement and the Pledge Agreement. Upon the occurrence of a Bankruptcy Event
or Sale of Assets, the Company shall promptly but in no event after two
Business Days thereafter give written notice to the Agent, the Collateral Agent
and to the Holders, at their addresses as they appear in the Security Register.
Prior to a Mandatory Acceleration Date, a Bankruptcy Event
Date, Sale of Assets Date or the Final Settlement Date, the Company shall have
the right at any time and from time to time to accelerate, in whole or in
part, the Outstanding Securities (a "Company Acceleration") (subject to the
notice provisions set forth in the Purchase Contract Agreement). "Company
Acceleration Price" shall mean the per share price (payable in shares of
Common Stock) at which the Company may accelerate settlement of the
Securities, which shall be initially $59.289 declining by $.00860 on each day
following November 6, 1996 (computed on the basis of a 360-day year of twelve
30-day months) to $51.1081 on August 31, 1999 and equal to $50.625 thereafter.
The Company may not exercise its right to accelerate the Securities unless the
Current Market Price determined as of the second Business Day immediately
preceding the Notice Date is equal to or exceeds the Company Acceleration
Price applicable to such Notice Date. Upon the effective date of such
acceleration ( a "Company Acceleration Date"), the Agent shall sell, pursuant
to Section 4.02(d) of the Purchase Contract Agreement, at the direction of the
Company subject to receipt thereof and pursuant to the Purchase Contract
Agreement, the Treasury Notes underlying the Securities accelerated unless the
Holder has paid the Stated Amount in cash pursuant to Section 4.2(b) of the
Purchase Contract Agreement. The Company shall then deliver, subject to the
terms of the Purchase Contract Agreement, to the Agent for the benefit of the
Holders thereof in exchange for each such Security accelerated, (i) a number
of fully paid and non-assessable shares of Common Stock determined by dividing
the Company Acceleration Price in effect on the Company Acceleration Date by
the Current Market Price of the Common Stock determined as of the second
Business Day immediately preceding the Notice Date applicable to such Company
Acceleration Date and (ii) an amount in cash equal to all accrued and unpaid
Contract Fees and Deferred Contract Fees, if any, on such Security to and
including such Company Acceleration Date (and Contract Fees and Deferred
Contract Fees, if any, shall cease to accrue on each Security accelerated as
of such date). Accrued interest on the Treasury Notes (and premium in respect
of the Sale of Treasury Notes) shall be paid to Holders as provided in the
Purchase Contract Agreement.
Immediately prior to the effectiveness of a merger or
consolidation of, or a statutory share exchange involving, the Company that
results in the conversion or exchange of the Common Stock into, or the right
to receive, other securities or other property (whether of the Company or any
other entity) (any such merger, consolidation or share exchange being referred
to herein as a "Merger or Consolidation"), each Outstanding Security shall
automatically be settled for (a "Mandatory Acceleration"), unless sooner
accelerated:
(i) fully paid and non-assessable shares of Common Stock at
the Settlement Rate in effect on the effective time on the date of any Merger
or Consolidation (the "Mandatory Acceleration Date"); plus
(ii) an amount in cash equal to all accrued and unpaid
Contract Fees and Deferred Contract Fees, if any, on such Securities to but
excluding the Mandatory Acceleration Date (and Contract Fees and Deferred
Contract Fees shall cease to accrue as of the Mandatory Acceleration Date);
plus
(iii) an amount in cash (except as provided below) initially
equal to $8.664, declining by $.008060 on each day following November 6, 1996
(computed on the basis of a 360-day year of twelve 30-day months) to $.4831 on
August 31, 1999 and equal to zero thereafter, in each case determined with
reference to the Mandatory Acceleration Date.
Accrued interest on the Treasury Notes shall be paid to Holders
as provided in the Purchase Contract Agreement. At the option of the Company
and provided that the Company has sufficient authorized and reserved shares
of Common Stock, it may deliver to the Agent, for the benefit of the Holders,
on the Mandatory Acceleration Date in lieu of some or all of the cash
consideration described in clauses (iii) above, fully paid and non-assessable
shares of Common Stock. The number of shares of Common Stock to be delivered
in lieu of any cash consideration described in such clauses (iii) shall be
determined by dividing the amount of cash consideration that the Company has
elected to deliver in Common Stock by the Current Market Price of the Common
Stock determined as of the second Business Day immediately preceding the
Notice Date applicable to such Mandatory Acceleration Date. Notice shall be
given for a Mandatory Acceleration as set forth in the Purchase Contract
Agreement.
If fewer than all outstanding Securities are to be accelerated,
the Securities to be accelerated shall be selected by the Agent by lot.
Upon the occurrence of a Bankruptcy Event or Sale of Assets
and the transfer to the Agent of the Treasury Notes underlying the Securities
pursuant to the terms of the Pledge Agreement, the Agent shall request transfer
instructions with respect to such Treasury Notes from each Holder of
Securities by written request mailed to such Holder at his address as it
appears in the Security Register, in respect of the Treasury Notes underlying
the Security Certificate held by such Holder. Upon surrender to the Agent of a
Security Certificate with such transfer instructions in proper form for
transfer of the Treasury Notes by Federal Reserve Bank-Wire or other
appropriate procedure, subject to the receipt of the Treasury Notes, the Agent
shall transfer the Treasury Notes evidenced by such Security Certificate to
such Holder in accordance with such instructions within three Business Days.
If a Security Certificate is not duly surrendered to the Agent with appropriate
transfer instructions, the Agent shall hold the Treasury Notes evidenced by
such Security Certificate as custodian for the Holder of such Security
Certificate.
In the event of an Acceleration of Securities, Holders of
Securities so accelerated may elect to pay to the Company through the Agent by
no later than 5:00 p.m., New York City time on the third Business Day
immediately preceding the Acceleration Date in immediately available funds an
amount in U.S. dollars equal to the Stated Amount per Security so accelerated.
Holders may make the election provided in this paragraph only in integral
multiples of 400 Securities. Upon Surrender to the Agent of a Security
Certificate with such transfer instructions in proper form for transfer of the
Treasury Notes by Federal Reserve Bank-Wire or other appropriate procedure,
along with the payment described in the previous sentence, subject to receipt
from the Collateral Agent, the Agent shall transfer the Treasury Notes
evidenced by such Security Certificate to such Holder in accordance with such
instructions within three Business Days of such payment. If payment is made in
accordance with the first sentence of this paragraph, the Company will issue
the number of shares of Common Stock equal to the Stated Amount for the
Securities accelerated on the Acceleration Date. The Company will also pay
in cash on the Acceleration Date accrued Contract Fees and Deferred Contract
Fees, if any, to holders of Securities who elect to pay the Stated Amount in
cash upon an Acceleration as provided in the Purchase Contract Agreement.
Because Holders may only elect to make a payment in cash
pursuant to the Purchase Contract Agreement in integral multiples of 400
Securities Treasury Notes shall be transferred only in denominations of
$15,000 and integral multiples thereof. Any Securities accelerated which are
not in integral multiples of 400 shall be settled in shares of Common Stock
pursuant to the Purchase Contract Agreement.
In the case of an Acceleration of Securities, the Agent on
behalf of each Holder (other than Holders that, pursuant to an election made in
accordance with the Purchase Contract Agreement, have paid the Stated Amount
in immediately available funds not later than 5:00 p.m., New York City time on
the third Business Day immediately preceding the Acceleration Date) will sell
on the second Business Day immediately preceding the Acceleration Date the
Treasury Notes underlying each such Holder's Securities to or through one or
more U.S. government securities dealers selected by the Company at the then
prevailing prices and automatically apply on the Acceleration Date, out of the
proceeds of such sale (excluding premium and accrued interest on the Treasury
Notes), an amount equal to the Stated Amount to satisfy in full each such
Holder's obligation to purchase the Common Stock from the Company on the
Acceleration Date. Any excess proceeds (in respect of premium on the sale of
the Treasury Notes) will be paid to such Holder. In the event that the
proceeds from the sale of such Treasury Notes (exclusive of accrued interest
on the Treasury Notes) is less than the Stated Amount, such proceeds
nevertheless will satisfy in full each such Holder's obligation to purchase
the Common Stock from the Company on the Acceleration Date. Amounts in
respect of accrued interest on the Treasury Notes will be paid to each such
Holder on the Acceleration Date. The proceeds of such sales shall be after
deduction by the Agent of all commissions and other out-of-pocket transaction
costs incurred in connection with the sale of such Treasury Notes and, until
the net proceeds of such sale or sales have been distributed to Holders of the
Securities, the Agent shall hold such proceeds as custodian for the Holders of
Securities. Such proceeds shall be held by the Agent uninvested without
liability to any Person for interest or other compensation thereon.
Subject to and upon compliance with the provisions of the
Purchase Contract Agreement, at the option of the Holder thereof, Purchase
Contracts in integral multiples of 400 Securities may be settled early
("Holder's Early Settlement") as provided in the Purchase Contract Agreement.
In order to exercise the right to effect Holder's Early Settlement with
respect to any Purchase Contracts evidenced by this Security Certificate, the
Holder of this Security Certificate shall deliver this Security Certificate to
the Agent at the Corporate Trust Office duly endorsed for transfer to the
Company or in blank with the form (or a writing substantially similar to the
form) of Election to Settle Early set forth below duly completed and
accompanied by payment in the form of a certified or cashier's check payable
to the order of the Company in immediately available funds in a U.S. dollar
amount or by wire transfer of Federal funds (the "Holder's Early Settlement
Amount") equal to the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect a
Holder's Early Settlement. If such delivery is made with respect to any
Purchase Contracts during the period from the close of business on any Record
Date next preceding any Payment Date to the opening of business on such
Payment Date, the amount equal to the sum of (x) the Contract Fees and
Deferred Contract Fees, if any, payable on such Payment Date with respect to
such Purchase Contracts plus (y) the interest on the related Treasury Notes
payable on such Payment Date shall be paid on the next succeeding Payment Date
applicable to the Prepaid Securities. The Company shall cause the Treasury
Notes deliverable upon a Holder's Early Settlement to be released from the
Pledge by the Collateral Agent and transferred to the Agent, for delivery to
the Holder thereof or its designee, no later than 5:00 p.m. on the third
Business Day after the applicable Holder's Early Settlement Date.
Upon Holder's Early Settlement and subject to receipt from the
Collateral Agent of the Treasury Notes, the Agent shall, in accordance with
the written instructions provided by the Holder thereof on the form (or a
writing substantially similar to the form) of Election to Settle Early of this
Security Certificate evidencing the related Securities, transfer the Treasury
Notes forming a part of such Securities to the applicable Holder as provided in
the Purchase Contract Agreement.
Upon a Holder's Early Settlement, the Company shall issue and
deliver to the Agent at the Corporate Trust Office a certificate or
certificates representing a face amount of Prepaid Securities equal to the
aggregate Stated Amount of the Securities subject to such Holder's Early
Settlement and bearing all rights in respect of accrued and unpaid Contract
Fees and Deferred Contract Fees, if any; and the Agent shall transfer such
Prepaid Securities to the Holders no later than 5:00 p.m. on the third
Business Day after the applicable Holder's Early Settlement Date.
Upon the transfer of Treasury Notes and the delivery of Prepaid
Securities pursuant to the Purchase Contract Agreement, the Purchase Contract
which has been thereby settled shall cease to be in effect.
This Security is issued in the form of one or more, fully
registered, Global Security Certificates, to be delivered to The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of the Company as
set forth in the Purchase Contract Agreement. If definitive, fully registered
Security Certificates are issued pursuant to the Purchase Contract Agreement,
such Security Certificates will be issuable only in registered form and only in
denominations of a single Security and any integral multiple thereof. The
transfer of any Security Certificate will be registered and Security
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The Security Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Purchase
Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. For so long as the Purchase Contract
underlying a Security remains in effect, such Security shall not be separable
into its constituent parts, and the rights and obligations of the Holder of
such Security in respect of the Treasury Notes and Purchase Contract
constituting such Security may be transferred and exchanged only as a Security.
Upon registration of transfer of this Security Certificate, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Agent pursuant to
the Purchase Contract Agreement), under the terms of the Purchase Contract
Agreement and the Purchase Contracts evidenced hereby and the transferor shall
be released from the obligations under the Purchase Contracts evidenced by
this Security Certificate. The Company covenants and agrees, and the Holder,
by his acceptance hereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
The Holder of this Security Certificate, by his acceptance
hereof, authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Securities evidenced hereby on his behalf as his
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the
event that the Company becomes the subject of a case under the Bankruptcy
Code, agrees to be bound by the terms and provisions thereof, covenants and
agrees to perform his obligations under such Purchase Contracts, consents to
the provisions of the Purchase Contract Agreement, authorizes the Agent to
enter into and perform the Pledge Agreement on his behalf as his
attorney-in-fact, and consents to the Pledge of the Treasury Notes underlying
this Security Certificate pursuant to the Pledge Agreement. The Holder further
covenants and agrees, that, to the extent and in the manner provided in the
Purchase Contract Agreement and the Pledge Agreement, but subject to the terms
thereof, payments in respect of principal of the Treasury Notes on the Final
Settlement Date shall be paid by the Collateral Agent to the Company in
satisfaction of such Holder's obligations under such Purchase Contract and
such Holder shall acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of at least
66 2/3% of the Outstanding Securities.
All terms used herein which are defined in the Purchase Contract
Agreement have the meanings set forth therein.
The Purchase Contracts shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York without
regard to conflicts of law.
Prior to due presentment of a Security Certificate for
registration of transfer, the Company and the Agent and any agent of the
Company or the Agent may treat the Person in whose name this Security
Certificate is registered as the owner of the Securities evidenced hereby for
the purpose of receiving payments of interest on the Treasury Notes, receiving
payments of Contract Fees and any Deferred Contract Fees, delivery of the
Treasury Notes, performance of the Purchase Contracts and for all other
purposes whatsoever, whether or not the payment of interest on the Treasury
Notes or any Contract Fees payable in respect thereof shall be overdue and
notwithstanding any notice to the contrary, and neither the Company, the Agent
nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of
Common Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Agent.
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon settlement on or after an Acceleration Date or the Final
Settlement Date of the Purchase Contracts underlying the number of Securities
evidenced by this Security Certificate be registered in the name of, and
delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated:______________________________ ___________________________________
Signature
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please print
such Person's name and address:
Please print name and address of
Registered Holder:
____________________________________ __________________________________
Name Name
____________________________________ __________________________________
Address Address
Social Security or other Taxpayer
Identification Number, if any __________________________________
HOLDER'S ELECTION TO SETTLE EARLY
The undersigned Holder of this Security Certificate hereby
irrevocably exercises the option to effect Holder's Early Settlement in
accordance with the terms of the Purchase Contract Agreement with respect to
the Purchase Contracts underlying the number of Securities evidenced by this
Security Certificate specified below. The undersigned Holder directs that a
certificate for Prepaid Securities deliverable upon such Holder's Early
Settlement be registered in the name of, and delivered with any Security
Certificate representing any Securities evidenced hereby as to which Holder's
Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. HOLDERS MAY MAKE THE ELECTION REFERRED TO THIS
PARAGRAPH AND IN THE PURCHASE CONTRACT AGREEMENT ONLY IN INTEGRAL MULTIPLES OF
400 SECURITIES. Treasury Notes deliverable upon such Holder's Early
Settlement will be transferred in accordance with the transfer instructions
set forth below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable
incident thereto.
Dated:________________________ _____________________________________
Signature
Number of Securities evidenced hereby as to which Holder's Early
Settlement of the related Purchase Contracts is being elected:
If shares or Security Certificates are REGISTERED HOLDER
to be registered in the name of and
delivered to and Treasury Notes are
to be transferred to a Person other
than the Holder, please print such
Person's name and address:
Please print name and address of
Registered Holder:
____________________________________ __________________________________
Name Name
____________________________________ __________________________________
Address Address
Social Security or other Taxpayer
Identification Number, if any __________________________________
Transfer Instructions for Treasury Notes Transferable Upon Holder's Early
Settlement:
EXHIBIT 4.4
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of November 6, 1996 (this "Agree ment"),
among SunAmerica Inc., a Maryland corporation (the "Company"), The First
National Bank of Chicago, a national banking association, not individually but
solely as collateral agent (in such capacity, together with its successors in
such capacity, the "Collateral Agent") and as "depositary" (as defined in 31
C.F.R ss.306, as amended) and as "securities intermediary" (as defined in
Section 8-102(a)(14) of the 1994 Official Text of the Uniform Commercial Code
and in 31 C.F.R. ss.357.2, as amended (in such capacity, together with its
successors in such capacity, the "Securities Intermediary")) for the collateral
account and for any Treasury Notes credited to the collateral account, and The
Bank of New York, not individually but solely as purchase contract agent and as
attorney-in-fact of the Holders (as hereinafter defined) from time to time of
the Securities (as hereinafter defined) (in such capacity, together with its
successors in such capacity, the "Pur chase Contract Agent") under the Purchase
Contract Agreement (as hereinafter defined).
RECITALS
The Company and the Purchase Contract Agent are parties to the Purchase
Contract Agreement, dated as of the date hereof (as modified and supplemented
and in effect from time to time, the "Purchase Contract Agreement"), pursuant to
which there will be issued 8.5% Premium Equity Redemption Cumulative Security
Units (the "Securities").
Each Security consists of (a) one Purchase Contract (as hereinafter
defined) and (b) 7.5% United States Treasury Notes due October 31, 1999
("Treasury Notes") having a principal amount equal to $37.50 (the "Stated
Amount") and maturing on October 31, 1999 (the "Final Settlement Date"), subject
to the pledge of such Treasury Notes created hereby.
The Company has caused the Underwriters, on its behalf, to purchase the
Treasury Notes, to be settled on November 6, 1996, with the proceeds of the
offering of the Securities and other funds to be provided by the Company. The
Company will convey such Treasury Notes to the Holders as a part of the Securi
ties.
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders (as defined in the Purchase Contract
Agreement) from time to time of the Securities have authorized the Purchase
Contract Agent, as attorney-in-fact of such Holders, among other things to
execute and deliver this Agreement on behalf of such Holders and to grant
the pledge provided hereby of the Treasury Notes constituting part of such
Securities as provided herein and subject to the terms hereof.
Accordingly, the Company, the Collateral Agent and the Purchase
Contract Agent, on its own behalf and as attorney-in-fact of the Holders from
time to time of the Securities, agree as follows:
SECTION 1. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and
(b) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Acceleration" has the meaning specified in the Purchase Contract
Agreement.
"Act" has the meaning specified in the Purchase Contract Agreement.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Treasury Regulations" means Subpart O- Book-Entry Procedure
of Title 31 of the Code of Federal Regulations (31 C.F.R. (S) 306.115 et. seq.)
and any other regulations of the United States Treasury Department from time to
time applicable to the transfer or pledge of book-entry U.S. Treasury
Securities, including, without limitation, the regulations set forth in 31 CFR
Part 357 which becomes effective January 1, 1997.
"Bankruptcy Code" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform system
of bankruptcy laws.
"Bankruptcy Event" has the meaning specified in the Purchase Contract
Agreement.
"Board Resolution" has the meaning specified in the Purchase Contract
Agreement.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which the New York Stock Exchange or banking institutions or trust companies
in The City of New York are authorized or obligated by law or executive order to
be closed.
"Collateral Agent" has the meaning specified in the first
paragraph of this instrument.
"Collateral Account" means the account maintained at The First National
Bank of Chicago in the name "The First National Bank of Chicago as Collateral
Agent of SunAmerica Inc. as pledgee of The Bank of New York as Purchase Contract
Agent".
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Final Settlement Date" has the meaning specified in the Recitals.
"Holder" when used with respect to a Security, or a Purchase Contract
constituting a part thereof, has the meaning specified in the Purchase Contract
Agreement.
"Holder's Early Settlement" has the meaning specified in the Purchase
Contract Agreement.
"Holder's Early Settlement Amount" has the meaning specified in the
Purchase Contract Agreement.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company and who shall be
reasonably acceptable to the Collateral Agent or the Purchase Contract Agent, as
the case may be.
"Outstanding Securities" has the meaning specified in the Purchase
Contract Agreement.
"Outstanding Security Certificates" has the meaning specified in the
Purchase Contract Agreement.
"Payment Date" has the meaning specified in the Purchase Contract
Agreement.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" has the meaning specified in Section 2 hereof.
"Pledged Treasury Notes" has the meaning specified in Section 2 hereof.
"Purchase Contract" has the meaning specified in the Purchase Contract
Agreement.
"Purchase Contract Agent" has the meaning specified in the first
paragraph of this instrument.
"Sale of Assets" has the meaning specified in the Purchase Contract
Agreement.
"Security" has the meaning specified in the Recitals.
"Security Certificate" has the meaning specified in the Purchase
Contract Agreement.
"Stated Amount" has the meaning specified in the Recitals.
"Treasury Notes" has the meaning specified in the Recitals.
"Underwriters" means the several Underwriters named in the Underwriting
Agreement dated October 31, 1996 between the Company and Morgan Stanley & Co.
Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs
& Co. and Smith Barney, Inc., as representatives of the several Underwriters
named herein.
SECTION 2. The Pledge.
The Holders from time to time of the Securities acting through the
Purchase Contract Agent, as their attorney-in-fact, hereby pledge and grant
to the Collateral Agent for the benefit of the Company, as collateral
security for the performance when due by such Holders of their respective
obligations under the Purchase Contracts comprising a portion of such
Securities, a security interest in all of the right, title and interest of
such Holders in the Treasury Notes credited to the Collateral Account.
Concurrently with the execution and delivery of the Securities (i) Morgan
Stanley & Co., Incorporated shall cause the Treasury Notes to be credited
to an account of the Securities Intermediary at the Federal Reserve Bank of
Chicago by Federal Reserve Bank-Wire and (ii) the Securities Intermediary
shall credit the Treasury Notes to the Collateral Account, in each case
pursuant to Applicable Treasury Regulations and to the Uniform Commercial
Code to the extent such laws are applicable and pursuant to instructions
from the Purchase Contract Agent on behalf of the Holders. The pledge
provided in this Section 2 is herein referred to as the "Pledge" and the
Treasury Notes subject to the Pledge, excluding any Treasury Notes released
from the Pledge as provided in Section 4 hereof, are hereinafter referred
to as the "Pledged Treasury Notes." Subject to the Pledge, and to the
provisions of Article 4 of the Purchase Contract Agreement, the Holders
from time to time of the Securities shall have full beneficial ownership of
the Treasury Notes credited to the Collateral Account and all securities
entitlements (as defined in 31 C.F.R. ss.357.2 or any similar provision of
state law or Revised Article 8 (as defined in 31 C.F.R. ss.357)) in respect
thereof.
Notwithstanding any other provision of this Agreement, the Securities
Intermediary hereby agrees that (a) it will comply with "entitlement orders"
(within the meaning of Section 8-102(a)(8) of Revised Article 8) relating to the
Collateral Account issued by the Collateral Agent without further consent by the
Purchase Contract Agent or any Holder and (b) it hereby waives any right of
set-off or recoupment that it may have with respect to the Collateral Account.
The Securities Intermediary hereby represents that it has not entered into, and
hereby agrees that until the termination of the Purchase Contract Agreement it
will not enter into, any agreement with any of the parties hereto specifying any
jurisdiction other than the State of New York as its jurisdiction for purposes
of 31 C.F.R ss.357.11(b), as amended, and any similar state law, or with any
other person relating to the Collateral Account pursuant to which it has agreed
to comply with entitlement orders made by such person.
SECTION 3. Distribution of Principal and Interest.
(a) All payments of principal of, or interest on, any Treasury
Notes consti tuting part of the Securities received by the Collateral Agent
shall be paid by the Collateral Agent by wire transfer in same day funds no
later than 12:00 p.m., New York City time, on the Business Day such
interest payment is received by the Collateral Agent (provided that in the
event such interest payment is received by the Collateral Agent on a day
that is not a Business Day, then such payment shall be made no later than
10:00 a.m., New York City time, on the next succeeding Business Day) (i)
in the case of (A) interest payments and (B) any principal payments with
respect to any Treasury Notes that have been released from the Pledge
pursuant to Section 4 hereof, to the Purchase Contract Agent to the account
designated by it for such purpose and (ii) in the case of principal
payments on any Pledged Treasury Notes, the Collateral Agent is hereby
authorized to make such payments to the Company, in full satisfaction of
the respective obligations of the Holders of the Securities of which such
Pledged Treasury Notes are a part under the Purchase Contracts forming a
part of such Securities. All such payments received by the Purchase
Contract Agent as provided herein shall be applied by the Purchase Contract
Agent pursuant to the provisions of the Purchase Contract Agreement. If,
notwithstanding the foregoing, the Purchase Contract Agent shall receive
any payments of principal on account of any Pledged Treasury Notes, the
Purchase Contract Agent shall hold the same as trustee of an express trust
for the benefit of the Company (and promptly deliver over to the Company)
for applica tion to the obligations of the Holders of the Securities of
which such Treasury Notes are a part under the Purchase Contracts relating
to the Securities of which such Treasury Notes are a part, and such Holders
shall acquire no right, title or interest in any such payments of principal
so received.
SECTION 4. Release of Pledged Treasury Notes.
(a) Upon written notice to the Collateral Agent by the Company or the
Purchase Contract Agent that there has occurred a Bankruptcy Event or Sale of
Assets, resulting in the termination of the Purchase Contracts in accordance
with Section 5.09 of the Purchase Contract Agreement, the Collateral Agent shall
re lease all Pledged Treasury Notes from the Pledge and shall transfer all such
Trea sury Notes, free and clear of any lien, pledge or security interest created
hereby, to the Purchase Contract Agent.
If such Bankruptcy Event or Sale of Assets shall result from the
Company's becoming a debtor under the Bankruptcy Code, and if the Collateral
Agent shall for any reason fail immediately to effectuate the release and
transfer of all Pledged Treasury Notes as provided by this Section 4(a), the
Purchase Contract Agent shall, subject to Section 6(m), and provided, however,
that the Company shall have offered to the Purchase Contract Agent such
reasonable indemnity as it may require against the costs, liabilities and
expenses to be incurred herein (i) use its best efforts to obtain an opinion of
a nationally recognized law firm reasonably acceptable to the Collateral Agent
to the effect that, as a result of the Company's being the debtor in such a
bankruptcy case, the Collateral Agent will not be prohibited from releasing or
transferring the Treasury Notes as provided in this Section 4(a), and shall
deliver such opinion to the Collateral Agent within ten days after the
occurrence of such Bankruptcy Event or Sale of Assets, and if (y) the Purchase
Contract Agent shall be unable to obtain such opinion within ten days after the
occurrence of such Bankruptcy Event or Sale of Assets or (z) the Collateral
Agent shall continue, after delivery of such opinion, to refuse to effectuate
the release and transfer of all Pledged Treasury Notes as provided in this
Section 4(a), then the Purchase Contract Agent shall within fifteen days after
the occurrence of such Bankruptcy Event or Sale of Assets commence an action or
proceeding in the court with jurisdiction of the Company's case under the
Bankruptcy Code seeking an order requiring the Collateral Agent to effectuate
the release and transfer of all Pledged Treasury Notes as provided by this
Section 4(a) or (ii) commence an action or proceeding like that described in the
immediately preceding subsection hereof within ten days after the occurrence of
such Bankruptcy Event or Sale of Assets.
(b) Upon written notice to the Collateral Agent and the Company by the
Purchase Contract Agent that one or more Holders of Securities have elected to
effect Holder's Early Settlement of their respective obligations under the
Purchase Contracts forming a part of such Securities in accordance with the
terms of the Purchase Contracts and the Purchase Contract Agreement (setting
forth the number of such Purchase Contracts as to which such Holders have
elected to ef fect Holder's Early Settlement), and that the Purchase Contract
Agent has received from such Holders, and paid to the Company, the related
Holder's Early Settle ment Amounts pursuant to the terms of the Purchase
Contracts and the Purchase Contract Agreement and that all conditions to such
Holder's Early Settlement have been satisfied, then the Company shall direct the
Collateral Agent to release from the Pledge and transfer all such Treasury
Notes, free and clear of any lien, pledge or security interest created hereby,
to the Purchase Contract Agent with a principal amount equal to the product of
(i) the Stated Amount times (ii) the number of such Purchase Contracts as to
which such Holders have elected to effect Holder's Early Settlement.
(c) Upon written notice to the Collateral Agent by the Company of an
Acceleration in accordance with the terms of the Purchase Contracts and the
Purchase Contract Agreement (setting forth the number of Securities to be
accelerated), and that all conditions to such Acceleration have been satisfied,
then the Collateral Agent shall release from the Pledge and shall transfer all
such Treasury Notes, free and clear of any lien, pledge or security interest
created hereby, to the Purchase Contract Agent with a principal amount equal to
the product of (i) the Stated Amount times (ii) the number of Securities to be
accelerated.
(d) Transfers of Treasury Notes pursuant to Section 4(a), (b) or (c)
shall be by Federal Reserve Bank-Wire or in another appropriate manner, (i) if
the Collateral Agent shall have received such notification at or prior to 11:00
a.m., New York City time, on a Business Day, then no later than 2:00 p.m., New
York City time, on such Business Day and (ii) if the Collateral Agent shall have
received such notification on a day that is not a Business Day or after 11:00
a.m., New York City time, on a Business Day, then no later than 10:00 a.m., New
York City time, on the next succeeding Business Day.
SECTION 5. Rights and Remedies.
(a) The Collateral Agent shall have all of the rights and remedies with
respect to the Pledged Treasury Notes of a secured party under the Uniform
Commercial Code as in effect in the State of New York (the "Code") (whether or
not the Code is in effect in the jurisdiction where the rights and remedies are
asserted) and such additional rights and remedies to which a secured party is
entitled under the laws in effect in any jurisdiction where any rights and
remedies hereunder may be asserted.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of principal payments of any Pledged
Treasury Notes as provided in Section 3 hereof in satisfaction of the
obligations of the Holder of the Securities of which such Pledged Treasury Notes
are a part under the Purchase Contracts forming a part of such Securities, the
Collateral Agent shall have and may exercise, with reference to such Pledged
Treasury Notes and such obligations of such Holder, any and all of the rights
and remedies available to a secured party under the Code after default by a
debtor, and as otherwise granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of principal of or interest on
the Pledged Treasury Notes.
(d) The Purchase Contract Agent agrees that, from time to time, upon
the written request of the Collateral Agent, the Purchase Contract Agent shall
execute and deliver such further documents and do such other acts and things as
the Collateral Agent may reasonably request in order to maintain the Pledge, and
the perfection and priority thereof, and to confirm the rights of the Collateral
Agent hereunder; provided that, except as expressly set forth herein or in
accordance with this subsection (d), the Purchase Contract Agent shall have no
obligation or liability with respect to the maintenance or perfection of the
Pledge.
SECTION 6. The Collateral Agent and the Purchase Contract Agent.
It is hereby agreed as follows:
(a) Appointment, Powers and Immunities. The Collateral Agent
shall act as agent for the Company hereunder with such powers as are
specifically vested in the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. The
Collateral Agent: (i) shall have no duties or responsibilities except
those expressly set forth in this Agreement and no implied covenants or
obligations shall be inferred from this Agreement against the Collateral
Agent, nor shall the Collateral Agent be bound by the provisions of any
agreement by any party hereto beyond the specific terms hereof; (ii) shall
not be re sponsible for any recitals contained in this Agreement, or in any
certificate or other document referred to or provided for in, or received
by it under, this Agreement, the Securities or the Purchase Contract
Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement (other than as against the
Collateral Agent), the Securities or the Purchase Contract Agreement or any
other document referred to or provided for herein or therein or for any
failure by the Company or any other Person (except the Collateral Agent) to
perform any of its obligations hereunder or thereunder; (iii) shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder (except pursuant to directions furnished under Section 6(b)
hereof); (iv) shall not be responsible for any action taken or omitted to
be taken by it hereunder or under any other document or instrument referred
to or provided for herein or in connection herewith or therewith, except
for its own gross negligence; and (v) shall not be required to advise any
party as to selling or retaining, or taking or refraining from taking any
action with respect to, any securities or other property deposited
hereunder. Subject to the foregoing, during the term of this Agreement,
the Collateral Agent shall take all reasonable action in connection with
the safe keeping and preservation of the Pledged Treasury Notes hereunder.
No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
perfor mance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the value of the Pledged Treasury
Notes.
(b) Instructions of the Company. The Company shall have the right, by
one or more instruments in writing executed and delivered to the Collateral
Agent, to direct the time, method and place of conducting any proceeding for any
right or remedy available to the Collateral Agent, or of exercising any power
conferred on the Collateral Agent, or to direct the taking or refraining from
taking of any action authorized by this Agreement; provided, however, that (i)
such direction shall not conflict with the provisions of any law or of this
Agreement and (ii) the Collateral Agent shall be adequately indemnified as
provided herein. Nothing in this Section 6(b) shall impair the right of the
Collateral Agent in its discretion to take any action or omit to take any action
which it deems proper and which is not inconsis tent with such direction.
(c) Reliance by Collateral Agent. The Collateral Agent shall be
entitled to rely upon any certification, order, judgment, opinion, notice
or other communication (including, without limitation, any thereof by
telephone, telecopy, telex, telegram or cable) reasonably believed by it to
be genuine and correct and to have been signed or sent by or on behalf of
the proper Person or Persons (without being required to determine the
correctness of any fact stated therein), and upon advice and statements of
legal counsel and other experts selected by the Collateral Agent. As to
any matters not expressly provided for by this Agreement, the Collateral
Agent shall in all cases be fully protected in acting, or in refraining
from acting, hereunder in accordance with instructions given by the Company
in accordance with this Agreement.
(d) Rights in Other Capacities. The Collateral Agent and its
affiliates may (without having to account therefor to the Company) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Purchase Contract Agent and
any Holder of Securities (and any of their subsidiaries or affiliates) as if it
were not acting as the Collateral Agent, and the Collateral Agent and its
affiliates may accept fees and other consideration from the Purchase Contract
Agent and any Holder of Securities without having to account for the same to the
Company, provided that the Collateral Agent covenants and agrees with the
Company that the Collateral Agent shall not accept, receive or permit there to
be created in its favor any security interest, lien or other encumbrance of any
kind in or upon the Pledged Treasury Notes.
(e) Non-Reliance on Collateral Agent. The Collateral Agent shall not
be required to keep itself informed as to the performance or observance by the
Purchase Contract Agent or any Holder of Securities of this Agreement, the
Purchase Contract Agreement, the Securities or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. The Collateral Agent shall
not have any duty or responsibility to provide the Company with any credit or
other information concerning the affairs, financial condition or business of the
Purchase Contract Agent or any Holder of Securities (or any of their affiliates)
that may come into the possession of the Collateral Agent or any of its
affiliates.
(f) Compensation and Indemnity by Company. The Company agrees: (i) to
pay the Collateral Agent from time to time reasonable compensation for all
services rendered by it hereunder and (ii) to indemnify the Collateral Agent and
the Purchase Contract Agent for, and to hold them harmless against, any loss,
liability or expense incurred without gross negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration of
their powers and duties under this Agreement, including the costs and expenses
(including reasonable fees and expenses of counsel) of defending themselves
against any claim or liability in connection with the exercise or performance of
such powers and duties.
(g) Compensation and Indemnity by Holders. The Holders agree (i) to
indemnify the Purchase Contract Agent for, and to hold it harmless against, any
loss, liability or expense incurred without gross negligence or bad faith on its
part, arising out of or in connection with the institution of suit on behalf of
the Holders pursuant to Section 4(a) above and (ii) to compensate the Purchase
Contract Agent for the reasonable costs and expenses (including reasonable fees
and expenses of counsel) incurred by it in instituting such suit.
(h) Failure to Act. In the event of any ambiguity in the provisions of
this Agreement or any dispute between or conflicting claims by or among the
parties hereto and/or any other Person with respect to any funds or property
deposited hereunder, the Collateral Agent shall be entitled, at its sole option,
to refuse to comply with any and all claims, demands or instructions with
respect to such property or funds so long as such dispute or conflict shall
continue, and the Collateral Agent shall not be or become liable in any way to
any of the parties hereto for its failure or refusal to comply with such
conflicting claims, demands or instructions. The Collateral Agent shall be
entitled to refuse to act until either (i) such conflicting or adverse claims or
demands shall have been finally determined by a court of competent jurisdiction
or settled by agreement between the conflicting parties as evidenced in a
writing, satisfactory to the Collateral Agent or (ii) the Collateral Agent shall
have received security or an indemnity satisfactory to the Collateral Agent
sufficient to save the Collateral Agent harmless from and against any and all
loss, liability or expense which the Collateral Agent may incur by reason of its
acting. The Collateral Agent may in addition elect to commence an interpleader
action or seek other judicial relief or orders as the Collateral Agent may deem
necessary. Notwithstanding anything contained herein to the contrary, the
Collateral Agent shall not be required to take any action that is in its opinion
contrary to law or to the terms of this Agreement, or which would in its opinion
subject it or any of its officers, employees or directors to liability.
(i) Resignation of Collateral Agent. Subject to the appointment
and acceptance of a successor Collateral Agent as provided below, (a) the
Collateral Agent may resign at any time by giving notice thereof to the
Company and the Purchase Contract Agent, (b) the Collateral Agent may be
removed at any time by the Company and (c) if the Collateral Agent fails to
perform any of its material obligations hereunder in any material respect
for a period of not less than 20 days after receiving written notice of
such failure by the Purchase Contract Agent and such failure shall be
continuing, the Collateral Agent may be removed by the Purchase Contract
Agent at the written direction of 25% in aggregate principal amount of
Holders of the Securities. The Purchase Contract Agent shall promptly
notify the Company of any removal of the Collateral Agent pursuant to
clause (c) of the immediately preceding sentence. Upon any such
resignation or removal, the Company shall have the right to appoint a
successor Collateral Agent. If no successor Collateral Agent shall have
been so appointed and shall have accepted such appointment within 30 days
after the retiring Collateral Agent's giving of notice of resignation or
such removal, then the retiring Collateral Agent may at the expense of the
Company petition any court of competent jurisdiction for the appointment of
a successor Collateral Agent. The Collateral Agent shall be a bank which
has an office in New York, New York and a combined capital and surplus of
at least $50,000,000. Upon the acceptance of any appointment as Collateral
Agent hereunder by a successor Collateral Agent, such successor Collateral
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Collateral Agent, and the
retiring Collateral Agent shall take all appropriate action to transfer any
money and property held by it hereunder (including the Pledged Treasury
Notes) to such successor Collateral Agent. The retiring Collateral Agent
shall, upon such succession, be discharged from its duties and obligations
as Collateral Agent hereunder. After any retiring Collateral Agent's
resignation hereunder as Collateral Agent, the provisions of this Section 6
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Collateral Agent.
Promptly following the removal or resignation of the Collateral
Agent the Company shall give written notice thereof to Moody's Investors
Services, Inc.
(j) Right to Appoint Agent or Advisor. The Collateral Agent
shall have the right to appoint agents or advisors in connection with any
of its duties hereunder, and the Collateral Agent shall not be liable for
any action taken or omitted by such agents or advisors selected in good
faith.
(k) Survival. The provisions of this Section 6 shall survive
termination of this Agreement and the resignation or removal of the
Collateral Agent.
(l) Anything in this Agreement to the contrary notwithstanding,
in no event shall the Collateral Agent or its officers, employees or agents
be liable under this Agreement to any third party for indirect, special,
punitive, or consequential loss or damage of any kind whatsoever, including
lost profits, whether or not the likelihood of such loss or damage was
known to the Collateral Agent, or any of its officers, employees or agents,
incurred without any act or deed that is found to be attributable to gross
negligence on the part of the Collateral Agent, its officers, employees or
agents.
(m) The Purchase Contract Agent. The duties and
responsibilities of the Purchase Contract Agent under this Agreement shall
in each case be governed by
Article VII of the Purchase Contract Agreement.
SECTION 7. Amendment.
(a) Amendment Without Consent of Holders. Without the consent
of any Holders, the Company, the Collateral Agent and the Purchase Contract
Agent, at any time and from time to time, may amend this Agreement, in form
satisfactory to the Company, the Collateral Agent and the Purchase Contract
Agent, for any of the following purposes:
(i) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the
Company; or
(ii) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon
the Company; or
(iii) to evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent or Purchase Contract
Agent; or
(iv) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other such
provisions herein, or to make any other provisions with respect to
such matters or questions arising under this Agreement, provided
such action shall not adversely affect the interests of the
Holders.
(b) Amendment with Consent of Holders. With the consent of the
Holders of not less than 66 2/3% of the Outstanding Securities, by Act of
said Holders delivered to the Company, the Purchase Contract Agent and the
Collateral Agent, the Company when authorized by a Board Resolution, the
Purchase Contract Agent and the Collateral Agent may amend this Agreement
for the purpose of modifying in any manner the provisions of this Agreement
or the rights of the Holders in respect of the Securities; provided,
however, that no such sup plemental agreement shall, without the consent of
the Holder of each Outstanding Security affected thereby,
(i) change the amount or type of Treasury Notes underlying a
Security, impair the right of the Holder of any Security to
receive interest payments on the underlying Treasury Notes or
otherwise adversely affect the Holder's rights in or to such
Treasury Notes; or
(ii) change any Payment Date;
(iii) impair the right to institute suit for the enforcement of any
Purchase Contract.
(iv) otherwise effect any action that would require the consent of
the Holder of each Outstanding Security affected thereby pursuant
to the Purchase Contract Agreement if such action were effected by
an agreement supplemental thereto; or
(v) reduce the percentage of Outstanding Securities the consent
of whose Holders is required for any such amendment.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed amendment, but it
shall be sufficient if
such Act shall approve the substance thereof.
(c) Execution of Amendments. In executing any amendment
permitted by this Section, the Collateral Agent and the Purchase Contract
Agent shall be entitled to receive and (subject to Section 6(a) hereof,
with respect to the Collateral Agent, and Section 7.01 of the Purchase
Contract Agreement, with respect to the Purchase Contract Agent) shall be
fully protected in relying upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement
and that all conditions precedent to such execution and delivery have been
satisfied.
(d) Effect of Amendments. Upon the execution of any amendment
under this Section, this Agreement shall be modified in accordance
therewith, and such amendment shall form a part of this Agreement for all
purposes; and every Holder of Security Certificates theretofore or
thereafter authenticated, executed on behalf of the Holders and delivered
under the Purchase Contract Agreement shall be bound thereby.
(e) Reference to Amendments. Security Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any amendment pursuant to this Section may, and shall if
required by the Collateral Agent or the Purchase Contract Agent, bear a
notation in a form approved by the Purchase Contract Agent and the
Collateral Agent as to any matter provided for in such amendment. If the
Company shall so determine, new Security Certificates so modified as to
conform, in the opinion of the Collateral Agent, the Purchase Contract
Agent and the Company, to any such amendment may be prepared and executed
by the Company and authenticated, executed on behalf of the Holders and
delivered by the Purchase Contract Agent in accordance with the Purchase
Contract Agreement in exchange for Outstanding Security Certificates.
SECTION 8. Miscellaneous.
(a) No Waiver. No failure on the part of the Collateral Agent
or any of its agents to exercise, and no course of dealing with respect to,
and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise by
the Collateral Agent or any of its agents of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. The remedies herein are cumulative and
are not exclusive of any remedies provided by law.
(b) Governing Law. THIS AGREEMENT, THE COLLATERAL ACCOUNT, AND
PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION AND THE PRIORITY
OF THE SECURITY INTEREST IN THE TREASURY NOTES OR ANY SECURITY ENTITLEMENT
WITH RESPECT THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AND THE SECURITIES INTERMEDIARY'S
JURISDICTION WILL BE THE STATE OF NEW YORK FOR PURPOSES OF 31 C.F.R.
ss.357.11(b), AS AMENDED, AND ANY SIMILAR STATE LAW. The Company, the
Collateral Agent and the Holders from time to time of the Securities,
acting through the Purchase Contract Agent as their attorney-in-fact,
hereby submit to the
nonexclusive jurisdiction of the United States District Court for the
Southern Dis trict of New York and of any New York state court sitting in
New York City for the purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. The
Company, the Collateral Agent and the Holders from time to time of the
Securities, acting through the Purchase Contract Agent as their attorney-
in-fact, irrevocably waive, to the fullest extent permitted by applicable
law, any objection which they may now or hereafter have to the laying of
the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an
inconvenient forum.
(c) Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be
given or made in writing (including, without limitation, by telecopy)
delivered to the intended recipient at the "Address for Notices" specified
below its name on the signature pages hereof or, as to any party, at such
other address as shall be designated by such party in a notice to the other
parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
(d) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of
the Company, the Collateral Agent and the Purchase Contract Agent, and the
Holders from time to time of the Securities, by their acceptance of the
same, shall be deemed to have agreed to be bound by the provisions hereof
and to have ratified the agreements of, and the grant of the Pledge
hereunder by, the Purchase Contract Agent.
(e) Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the
same instrument, and any of the parties hereto may execute this Agreement
by signing any such counterpart.
(f) Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (i) the other provisions hereof shall remain in full force and effect
in such jurisdiction and shall be liberally construed in order to carry out
the intentions of the parties hereto as nearly as may be possible and (ii)
the invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction.
(g) Expenses, etc. The Company agrees to reimburse the
Collateral Agent for: (a) all reasonable out-of-pocket costs and expenses
of the Collateral Agent (including, without limitation, the reasonable fees
and expenses of counsel to the Collateral Agent), in connection with (i)
the negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the
terms of this Agreement; (b) all reasonable costs and expenses of the
Collateral Agent (including, without limitation, reasonable fees and
expenses of counsel) in connection with (i) any enforcement or proceedings
resulting or incurred in connection with causing any Holder of Securi ties
to satisfy its obligations under the Purchase Contracts forming a part of
the Securities and (ii) the enforcement of this Section 8(g); and (c) all
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this
Agreement or any other document referred to herein and all costs, expenses,
taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest
contemplated hereby.
(h) Security Interest Absolute. All rights of the Collateral
Agent and security interests hereunder, and all obligations of the Holders
from time to time of the Securities hereunder, shall be absolute and
unconditional irrespective of:
(i) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Securities or any other agreement or
instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or any
other term of, or any increase in the amount of, all or any of the
obligations of Holders of Securities under the related Purchase
Contracts, or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Purchase
Contract Agreement or any Purchase Contract or any other agreement
or instrument relating thereto; or
(iii) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or
a pledgor.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year
first above written.
SunAmerica Inc.
By:
--------------------------------
Name: James R. Belardi
Title: Executive Vice President
Address for Notices:
SunAmerica Inc.
1 SunAmerica Center
Los Angeles, CA 90067-6022
Attention: Treasurer
Telecopy: (310) 772-6635
The Bank of New York as Purchase
Contract Agent and as
attorney-in-fact of the Holders from
time to time of the Securities
By:
--------------------------------
Name: Vivian Georges
Title: Assistant Vice President
Address for Notices:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, NY 10286
Attention: Corporate Trust
Administration Trustee
Telecopy: (212) 815-5915
The First National Bank of Chicago
as Collateral Agent and Securities
Intermediary with respect to
the Collateral Account and as
Securities Intermediary with
respect to any Treasury Notes
credited to the Collateral
Account
By:
--------------------------------
Name: Richard D. Manella
Title: Vice President
Address for Notices:
The First National Bank of Chicago
One First National Plaza
Mail Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust
Administration
Telecopy: (312) 407-1708
EXHIBIT 4.5
=======================================================
SUNAMERICA INC.
AND
THE BANK OF NEW YORK, Trustee
Prepaid Security Indenture
Dated as of November 1, 1996
__________
=======================================================
TABLE OF CONTENTS
__________
Page
----
PARTIES.................................................................. 1
RECITALS................................................................. 1
Authorization of Indenture...................................... 1
Compliance with Legal Requirements.............................. 1
Purpose of and Consideration for Indenture...................... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined............................... 1
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally...................................... 8
SECTION 2.2 Form of Trustee's Certificate of
Authentication...................................... 8
SECTION 2.3 Amount Unlimited; Issuable in Series................. 9
SECTION 2.4 Authentication and Delivery of
Securities......................................... 12
SECTION 2.5 Execution of Securities............................. 16
SECTION 2.6 Certificate of Authentication....................... 17
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest............................... 17
SECTION 2.8 Registration, Transfer and Exchange................. 19
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost
and Stolen Securities............................. 23
SECTION 2.10 Cancellation of Securities; Destruction
Thereof............................................ 25
SECTION 2.11 Temporary Securities................................ 25
SECTION 2.12 CUSIP Numbers....................................... 26
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest................... 26
SECTION 3.2 Offices for Payments, etc........................... 27
SECTION 3.3 Appointment to Fill a Vacancy in Office
of Trustee......................................... 29
SECTION 3.4 Paying Agents....................................... 29
SECTION 3.5 Written Statement to Trustee.........................30
SECTION 3.6 Luxembourg Publications............................. 30
SECTION 3.7 SEC Reports......................................... 30
SECTION 3.8 Applicability of Article............................ 31
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS
BY THE ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information
as to Names and Addresses of
Securityholders.................................... 31
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists.............................................. 31
SECTION 4.3 Reports by the Issuer............................... 31
SECTION 4.4 Reports by the Trustee.............................. 32
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration
of Maturity; Waiver of Default..................... 30
SECTION 5.2 Collection of Indebtedness by Trustee;
Trustee May Prove Debt............................. 35
SECTION 5.3 Application of Proceeds............................. 38
SECTION 5.4 Suits for Enforcement............................... 39
SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings........................................ 39
SECTION 5.6 Limitations on Suits by
Securityholders.................................... 40
SECTION 5.7 Unconditional Right of Securityholders
to Institute Certain Suits......................... 41
SECTION 5.8 Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default.................. 41
SECTION 5.9 Control by Holders of Securities.................... 41
SECTION 5.10 Waiver of Past Defaults............................. 42
SECTION 5.11 Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances...................................... 43
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs.............................................. 43
SECTION 5.13 Applicability of Article............................ 44
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the
Trustee; During Default; Prior
to Default......................................... 44
SECTION 6.2 Certain Rights of the Trustee....................... 46
SECTION 6.3 Trustee Not Responsible for
Recitals, Disposition of Securities
or Application of Proceeds Thereof................. 47
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, etc................................... 48
SECTION 6.5 Moneys Held by Trustee.............................. 48
SECTION 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim........................ 48
SECTION 6.7 Right of Trustee to Rely on Officer's Certificate,
etc................................................ 49
SECTION 6.8 Indentures Not Creating Potential
Conflicting Interests for the
Trustee............................................ 49
SECTION 6.9 Persons Eligible for Appointment
as Trustee......................................... 49
SECTION 6.10 Resignation and Removal; Appointment
of Successor Trustee................................50
SECTION 6.11 Acceptance of Appointment by Successor
Trustee............................................ 52
SECTION 6.12 Merger, Conversion, Consolidation
or Succession to Business of Trustee............... 54
SECTION 6.13 This Section intentionally left blank............... 55
SECTION 6.14 Appointment of Authenticating Agent................. 55
SECTION 6.15 Preferential Collection of Claims....................56
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders.................................... 56
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities......................................... 57
SECTION 7.3 Holders to be Treated as Owners..................... 58
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding... 59
SECTION 7.5 Right of Revocation of Action Taken................. 59
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent
of Securityholders................................. 60
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders.................................... 62
SECTION 8.3 Effect of Supplemental Indenture.................... 64
SECTION 8.4 Documents to Be Given to Trustee.................... 64
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures......................................... 64
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Issuer May Consolidate, Etc., Only on
Certain Terms...................................... 65
SECTION 9.2 Successor Corporation Substituted................... 66
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of
Indenture.......................................... 66
SECTION 10.2 Application by Trustee of Funds
Deposited for Payment of Securities................ 71
SECTION 10.3 Repayment of Moneys Held by
Paying Agent....................................... 71
SECTION 10.4 Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two Years............... 71
SECTION 10.5 Indemnity for U.S. Government
Obligations........................................ 72
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability............................... 72
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Holders of
Securities and Coupons............................. 73
SECTION 11.3 Successors and Assigns of Issuer Bound
by Indenture....................................... 73
SECTION 11.4 Notices and Demands on Issuer, Trustee
and Holders of Securities and Coupons.............. 73
SECTION 11.5 Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein................. 74
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays..... 75
SECTION 11.7 Conflict of Any Provision of Indenture
with Trust Indenture Act of 1939................... 76
SECTION 11.8 New York Law to Govern.............................. 76
SECTION 11.9 Counterparts........................................ 76
SECTION 11.10 Effect of Headings.................................. 76
SECTION 11.11 Securities in a Foreign Currency
or in ECU.......................................... 76
SECTION 11.12 Judgment Currency................................... 77
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article............................ 78
SECTION 12.2 Notice of Redemption; Partial
Redemptions........................................ 78
SECTION 12.3 Payment of Securities Called for
Redemption......................................... 81
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for
Redemption......................................... 82
SECTION 12.5 Mandatory and Optional Sinking Funds................ 82
TESTIMONIUM
SIGNATURES
THIS INDENTURE, dated as of November 1, 1996 between SUNAMERICA
INC., a Maryland corporation (the "Issuer") THE BANK OF NEW YORK, a New York
banking corporation, as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured debentures, notes or other evidences of indebtedness to
be issued in one or more series (the "Securities") up to such principal amount
or amounts as may from time to time be authorized in accordance with the terms
of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities and of the coupons, if any,
appertaining thereto as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided herein or in any supplemental
indenture or form of Security for a particular series or unless the context
otherwise clearly requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section. All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939 or the definitions of which in the Securities Act
of 1933 are referred to in the Trust Indenture Act of 1939, including terms
defined therein by reference to the Securities Act of 1933 (except as herein
otherwise expressly provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in said Trust Indenture Act and in
said Securities Act as in force at the date of this Indenture. All accounting
terms used herein and not expressly defined shall have the meanings assigned
to such terms in accordance with generally accepted accounting principles, and
the term "generally accepted accounting principles" means such accounting
principles as are generally accepted at the time of any computation. The
words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision. The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular.
"Authenticating Agent" shall have the meaning set forth in
Section 6.14.
"Authorized Newspaper" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition), in the case of the United Kingdom, will, if practicable, be
the Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be the Luxembourger Wort) published in an official language of
the country of publication customarily published at least once a day for at
least five days in each calendar week and of general circulation in The City
of New York, the United Kingdom or in Luxembourg, as applicable.
"Board of Directors" means either the Board of Directors of the
Issuer or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have
been duly adopted or consented to by the Board of Directors and to be in full
force and effect, and delivered to the Trustee.
"Business Day" means any day that is not a Saturday, Sunday or
a day on which the NYSE or banking institutions or trust companies in the City
of New York are authorized or obligated by law or executive order to be
closed.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of which
this Indenture is dated, located in the City of New York, State of New York.
"Coupon" means any interest coupon appertaining to an
Unregistered Security.
"Covenant Defeasance" shall have the meaning set forth in
Section 10.1(C).
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at any
time there is more than one such Person, "Depositary" as used with respect to
the Securities of any such series shall mean the Depositary with respect to
the Registered Global Securities of that series.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as
such in Section 5.1.
"Foreign Currency" means a currency issued by the government of
a country other than the United States.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean (a) in the case of any Registered Security, the person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (b) in the
case of any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"Issuer" means (except as otherwise provided in Article Six)
SunAmerica Inc., a Maryland corporation and, subject to Article Nine, its
successors and assigns.
"Issuer Order" means a written statement, request or order of
the Issuer signed in its name by the chairman or vice chairman of the Board of
Directors, the president, any executive, senior or other vice president or the
treasurer of the Issuer.
"Judgment Currency" shall have the meaning set forth in Section
11.12.
"Officer's Certificate" means a certificate signed by the
chairman or vice chairman of the Board of Directors, the president or any
executive, senior or other vice president or the treasurer of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314
of the Trust Indenture Act of 1939 and include the statements provided for in
Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by the
General Counsel of the Issuer or by such other legal counsel who may be an
employee of or counsel to the Issuer and who shall be satisfactory to the
Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 11.5.
"Original Issue Date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
"Outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys or U.S. Government Obligations (as
provided for in Section 10.1(A) and (B)) in the necessary amount
shall have been deposited in trust with the Trustee or with any
paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such
Securities (if the Issuer shall act as its own paying agent),
provided that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption
shall have been given as herein provided, or provision satisfactory
to the Trustee shall have been made for giving such notice; and
(c) Securities that shall have been paid or in substitution
for which other Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.9 (except with respect
to any such Security as to which proof satisfactory to the Trustee is
presented that such Security is held by a person in whose hands such
Security is a legal, valid and binding obligation of the Issuer) or
Securities converted pursuant hereto or Securities not deemed
outstanding pursuant to Section 12.2.In determining whether the
Holders of the requisite principal amount of Outstanding Securities
of any or all series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount
of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of a series
from time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Principal" whenever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include "and premium,
if any".
"Record Date" shall have the meaning set forth in Section 2.7.
"Registered Global Security", means a Security evidencing all
or a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.4, and bearing the legend prescribed
in Section 2.4.
"Registered Security" means any Security registered on the
Security register of the Issuer.
"Required Currency" shall have the meaning set forth in Section
11.12.
"Responsible Officer" when used with respect to the Trustee
means the chairman of the board of directors, any vice chairman of the board
of directors, the chairman of the trust committee, the chairman of the
executive committee, any vice chairman of the executive committee, the
president, any vice president, (whether or not designated by numbers or words
added before or after the title "vice president") the cashier, the secretary,
the treasurer, any trust officer, any assistant trust officer, any assistant
vice president, any assistant cashier, any assistant secretary, any assistant
treasurer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
"Security" or "Securities" (except as otherwise provided in
Section 7.4) has the meaning stated in the first recital of this Indenture,
or, as the case may be, Securities that have been authenticated and delivered
under this Indenture.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning set forth
in Section 10.1(A).
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to rather than set forth in a Board
Resolution, an Officer's Certificate detailing such establishment) or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be determined
by the officers executing such Securities and Coupons, if any, as evidenced by
their execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the
within-mentioned Subordinated Indenture.
______________________,
as Trustee
By_____________________
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed
with respect to any series of Securities, then the Trustee's Certificate of
Authentication to be borne by the Securities of each such series shall be
substantially as follows:
"This is one of the Securities referred to in the
within-mentioned Subordinated Indenture.
_________________________,
as Authenticating Agent
By_____________________
Authorized Signatory"
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and each
such series shall rank equally and pari passu with the Securities of each
other series and all other senior and unsubordinated debt of the Issuer.
There shall be established in or pursuant to one or more Board Resolutions
(and to the extent established pursuant to rather than set forth in a Board
Resolution, in an Officer's Certificate detailing such establishment) or
established in one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the Series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 2.8, 2.9,
2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited
to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such
interest shall accrue, on which such interest shall be payable and
(in the case of Registered Securities) on which a record shall be
taken for the determination of Holders to whom interest is payable
and/or the method by which such rate or rates or date or dates shall
be determined, and any provisions for the deferral of interest
payments;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other than
as provided in Section 3.2);
(7) the right, if any, of the Issuer to redeem Securities, in
whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon
which Securities of the series may be so redeemed, pursuant to any
sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of
a Holder thereof and the price or prices at which and the period or
periods within which and any terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and
$5,000 in the case of Unregistered Securities, the denominations in
which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the Securities
of that series are denominated, the coin or currency in which payment
of the principal of or interest on the Securities of such series
shall be payable;
(12) if the principal of or interest on the Securities of such
series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency other than that in which the
Securities are denominated, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(13) if the amount of payments of principal of and interest on
the Securities of the series may be determined with reference to an
index based on a coin or currency other than that in which the
Securities of the series are denominated, the manner in which such
amounts shall be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities) or Unregistered Securities
(with or without Coupons), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery of
Unregistered Securities or the payment of interest thereon and, if
other than as provided in Section 2.8, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a person
who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Issuer will have the option to redeem such Securities rather than pay
such additional amounts;
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(17) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with
respect to the Securities of such series;
(18) any additional terms relating to events of default or
covenants (or the defeasance thereof) with respect to the Securities
of such series, including without limitation any terms inconsistent
with the provisions of this Indenture relating to events of default
or covenants (or the defeasance thereof);
(19) if the Securities of such series are to be convertible or
exchangeable into any cash, securities or property, at the option of
the Holder or the Issuer or upon the happening of some event or
otherwise, all terms relating to such convertibility, including
without limitation any term inconsistent with the provisions of this
Indenture relating to conversion or exchange;
(20) any additional definitions with respect to the Securities of
such series, including without limitation any definitions
inconsistent with the provisions of this Indenture; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in the case of
Registered Securities as to denomination and except as may otherwise be
provided by or pursuant to the Board Resolution or Officer's Certificate
referred to above or as set forth in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and may
be issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution, such Officer's Certificate
or in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. The
Issuer may deliver Securities of any series having attached thereto
appropriate Coupons, if any, executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in
this Section, and the Trustee shall thereupon authenticate and make available
for delivery such Securities to or upon the order of the Issuer (contained in
the Issuer Order referred to below in this Section) or pursuant to such
procedures acceptable to the Trustee and to such recipients as may be
specified from time to time by an Issuer Order. The maturity date, original
issue date, interest rate and any other terms of the Securities of such series
and Coupons, if any, appertaining thereto shall be determined by or pursuant
to such Issuer Order and procedures. If provided for in such procedures, such
Issuer Order may authorize authentication and delivery pursuant to oral
instructions from the Issuer or its duly authorized agent, which instructions
shall be promptly confirmed in writing. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive (in the case of
subparagraphs 2, 3 and 4 below only at or before the time of the first request
of the Issuer to the Trustee to authenticate Securities of such series) and
(subject to Section 6.1) shall be fully protected in relying upon, unless and
until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities and Coupons, if any,
are not to be delivered to the Issuer, provided that, with respect to
Securities of a series subject to a Periodic Offering, (a) such
Issuer Order may be delivered by the Issuer to the Trustee prior to
the delivery to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and make available for
delivery Securities of such series for original issue from time to
time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, pursuant to an Issuer
Order or pursuant to procedures acceptable to the Trustee as may be
specified from time to time by an Issuer Order, (c) the maturity date
or dates, original issue date or dates, interest rate or rates and
any other terms of Securities of such series shall be determined by an
Issuer Order or pursuant to such procedures and (d) if provided for
in such procedures, such Issuer Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the
Issuer or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing;
(2) any Board Resolution, Officer's Certificate and/or
executed supplemental indenture referred to in Sections 2.1 and 2.3
by or pursuant to which the forms and terms of the Securities and
Coupons, if any, were established;
(3) an Officer's Certificate setting forth the form or forms
and terms of the Securities and Coupons, if any, stating that the
form or forms and terms of the Securities and Coupons, if any, have
been established pursuant to Sections 2.1 and 2.3 and comply with this
Indenture, and covering such other matters as the Trustee may
reasonably request; and
(4) At the option of the Issuer, either one or more Opinions
of Counsel, or a letter addressed to the Trustee permitting it to
rely on one or more Opinions of Counsel, substantially to the effect
that:
(a) the forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with
the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms
of the Securities have been duly authorized and established in
conformity with the provisions of this Indenture, and, in the
case of an offering that is not underwritten, certain terms of
the Securities have been established pursuant to a Board
Resolution, an Officer's Certificate or a supplemental
indenture in accordance with this Indenture, and when such
other terms as are to be established pursuant to procedures set
forth in an Issuer Order shall have been established, all such
terms will have been duly authorized by the Issuer and will
have been established in conformity with the provisions of this
Indenture;
(c) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered
to and duly paid for by the purchasers thereof, they will have
been duly issued under this Indenture, will be entitled to the
benefits of this Indenture, and will be valid and binding
obligations of the Issuer, enforceable in accordance with their
respective terms except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration, if
any, and the availability of equitable remedies may be limited
by equitable principles of general applicability; and
(d) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the
Securities and Coupons, if any, will not contravene any
provision of any material applicable law or the certificate of
incorporation or by-laws of the Issuer or any agreement or
other instrument binding upon the Issuer or any of its
"significant subsidiaries" (as defined in Article 1 of
Regulation S-X under the Securities Act of 1933) that is
material to the Issuer and its subsidiaries, taken as a whole,
or, to the best of such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court
having jurisdiction over the Issuer or any "significant
subsidiary" (as defined above), and no consent, approval,
authorization or order of or qualification with any governmental
body or agency is required for the performance by the Issuer of
its obligations under the Securities and Coupons, if any,
except such as are specified and have been obtained and such as
may be required by the securities or blue sky laws of the
various states in connection with the offer and sale of the
Securities and Coupons, if any.
In rendering such opinions, any counsel may qualify any
opinions as to enforceability by stating that such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such
counsel may rely upon opinions of other counsel (copies of which shall be
delivered to the Trustee), who shall be counsel reasonably satisfactory to the
Trustee, in which case the opinion shall state that such counsel believes he
and the Trustee are entitled so to rely. Such counsel may also state that,
insofar as such opinion involves factual matters, he has relied, to the extent
he deems proper, upon certificates of officers of the Issuer and its
subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and
make available for delivery any Securities under this Section if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken by the Issuer or if the Trustee in good faith by its board of directors
or board of trustees, executive committee, or a trust committee of directors
or trustees or Responsible Officers shall determine that such action would
expose the Trustee to personal liability to existing Holders or would affect
the Trustee's own rights, duties or immunities under the Securities, this
Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and make available for delivery one or more Registered Global
Securities that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Securities of such series
issued and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary
or pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security
may not be transferred except as a whole by the Depositary to the nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by the chairman or vice chairman of its Board of Directors or its
president or any executive, senior or other vice president or its treasurer,
under its corporate seal (except in the case of Coupons), which may, but need
not, be attested. Such signatures may be the manual or facsimile signatures
of the present or any future such officers. The seal of the Issuer may be in
the form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors
or defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or
Coupon had not ceased to be such officer of the Issuer; and any Security or
Coupon may be signed on behalf of the Issuer by such persons as, at the actual
date of the execution of such Security or Coupon, shall be the proper officers
of the Issuer, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized signatories, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. No
Coupon shall be entitled to the benefits of this Indenture or shall be valid
and obligatory for any purpose until the certificate of authentication on the
Security to which such Coupon appertains shall have been duly executed by the
Trustee. The execution of such certificate by the Trustee upon any Security
executed by the Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series
are not so established, such Securities shall be issuable in denominations of
$1,000 and $5,000. The Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as
the officers of the Issuer executing the same may determine with the approval
of the Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in the
resolution or resolutions of the Board of Directors of the Issuer referred to
in Section 2.3. The Securities of each series shall bear interest, if any,
from the date, and such interest shall be payable on the dates, established as
contemplated by Section 2.3.
The person in whose name any Registered Security of any series
is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Issuer shall default in the payment of
the interest due on such interest payment date for such series, in which case
such defaulted interest shall be paid to the persons in whose names
Outstanding Registered Securities for such series are registered at the close
of business on a subsequent record date (which shall be not less than five
Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the
Holders of Registered Securities not less than 15 days preceding such
subsequent record date. The term "record date" as used with respect to any
interest payment date (except a date for payment of defaulted interest) for
the Securities of any series shall mean the date specified as such in the
terms of the Registered Securities of such series established as contemplated
by Section 2.3, or, if no such date is so established, if such interest
payment date is the first day of a calendar month, the fifteenth day of the
next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month,
whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer
will keep at each office or agency to be maintained for the purpose as
provided in Section 3.2 for each series of Securities a register or registers
in which, subject to such reasonable regulations as it may prescribe, it will
provide for the registration of Registered Securities of such series and the
registration of transfer of Registered Securities of such series. Such
register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open for inspection by
the Trustee.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be
maintained for the purpose as provided in Section 3.2, the Issuer shall
execute and the Trustee shall authenticate and make available for delivery in
the name of the transferee or transferees a new Registered Security or
Registered Securities of the same series, maturity date, interest rate and
original issue date in authorized denominations for a like aggregate principal
amount.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached to any
temporary global Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth
below) may be exchanged for a Registered Security or Registered Securities of
such series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance
with Section 3.2 and upon payment, if the Issuer shall so require, of the
charges hereinafter provided. If the Securities of any series are issued in
both registered and unregistered form, except as otherwise specified pursuant
to Section 2.3, at the option of the Holder thereof, Unregistered Securities
of any series may be exchanged for Registered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section
3.2, with, in the case of Unregistered Securities that have Coupons attached,
all unmatured Coupons and all matured Coupons in default thereto appertaining,
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities of
any series, maturity date, interest rate and original issue date are issued in
more than one authorized denomination, except as otherwise specified pursuant
to Section 2.3, such Unregistered Securities may be exchanged for Unregistered
Securities of such series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered Securities to
be exchanged at the agency of the Issuer that shall be maintained for such
purpose in accordance with Section 3.2 or as specified pursuant to Section
2.3, with, in the case of Unregistered Securities that have Coupons attached,
all unmatured Coupons and all matured Coupons in default thereto appertaining,
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. Registered Securities of any series may not be exchanged for
Unregistered Securities of such series unless (1) otherwise specified pursuant
to Section 2.3 and (2) the Issuer has delivered to the Trustee an Opinion of
Counsel that (x) the Issuer has received from the Internal Revenue Service a
ruling or (y) since the date hereof, there has been a change in the applicable
Federal income tax law, in either case to the effect that the inclusion of
terms permitting Registered Securities to be exchanged for Unregistered
Securities would result in no adverse Federal income tax effect to the Issuer
or to any Holder. Whenever any Securities are so surrendered for exchange,
the Issuer shall execute, and the Trustee shall authenticate and deliver, the
Securities that the Holder making the exchange is entitled to receive. All
Securities and Coupons surrendered upon any exchange or transfer provided for
in this Indenture shall be promptly canceled by the Trustee and the Trustee
will return the canceled Securities to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Issuer
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed by the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall
be made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such
series to be redeemed or (b) any Securities selected, called or being called
for redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of
a series represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary eligible under Section 2.4 with respect to such
Registered Securities. If a successor Depositary eligible under Section 2.4
for such Registered Securities is not appointed by the Issuer within 90 days
after the Issuer receives such notice or becomes aware of such ineligibility,
the Issuer's election pursuant to Section 2.3 that such Registered Securities
be represented by one or more Registered Global Securities shall no longer be
effective and the Issuer will execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and make available for delivery,
Securities of such series in definitive registered form without coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
such Registered Securities in exchange for such Registered Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine
that the Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and make
available for delivery, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered Global
Security or Securities representing such Registered Securities, in exchange
for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect
to Securities represented by a Registered Global Security, the Depositary for
such Registered Global Security may surrender such Registered Global Security
in exchange in whole or in part for Securities of the same series in
definitive registered form on such terms as are acceptable to the Issuer and
such Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and make available for delivery, without service charge,
(i) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any
authorized denominations as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person's
beneficial interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without coupons, in authorized
denominations, such Registered Global Security shall be canceled by the
Trustee or an agent of the Issuer or the Trustee. Securities in definitive
registered form without coupons issued in exchange for a Registered Global
Security pursuant to this Section 2.8 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Issuer or the
Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series
of Securities to the contrary, none of the Issuer, the Trustee or any agent of
the Issuer or the Trustee (any of which, other than the Issuer, shall rely on
an Officer's Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the Issuer (such
as, for example, the inability of the Issuer to deduct from its income, as
computed for Federal income tax purposes, the interest payable on the
Unregistered Securities) under then applicable United States Federal income
tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be destroyed,
lost or stolen, the Issuer in its discretion may execute, and upon the request
of any officer of the Issuer, the Trustee shall authenticate and make
available for delivery a new Security of the same series, maturity date,
interest rate and original issue date, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the applicant
for a substitute Security or Coupon shall furnish to the Issuer and to the
Trustee and any agent of the Issuer or the Trustee such security or indemnity
as may be required by them to indemnify and defend and to save each of them
harmless and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security or Coupon and
of the ownership thereof and in the case of mutilation or defacement shall
surrender the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) or its agent
connected therewith. In case any Security or Coupon that has matured or is
about to mature, has been called for redemption in full or is being converted
in full shall become mutilated or defaced or be destroyed, lost or stolen, the
Issuer may instead of issuing a substitute Security, pay or authorize the
payment or conversion of the same or the payment of the relevant Coupon
(without surrender thereof except in the case of a mutilated or defaced
Security or Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to their satisfaction of the destruction, loss or theft
of such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact that any such
Security or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Security or Coupon shall be at any time enforceable by anyone and shall
be entitled to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Securities or Coupons of such series duly authenticated
and delivered hereunder. All Securities and Coupons shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and Coupons and
shall preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof.
All Securities and Coupons surrendered for payment, redemption, registration
of transfer or exchange, conversion or for credit against any payment in
respect of a sinking or analogous fund, if surrendered to the Issuer or any
agent of the Issuer or the Trustee or any agent of the Trustee, shall be
delivered to the Trustee or its agent for cancellation or, if surrendered to
the Trustee, shall be canceled by it; and no Securities or Coupons shall be
issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. The Trustee or its agent shall return canceled Securities
and Coupons to the Issuer. If the Issuer or its agent shall acquire any of the
Securities or Coupons, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities or Coupons
unless and until the same are delivered to the Trustee or its agent for
cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and make available for delivery temporary Securities for
such series (printed, lithographed, typewritten or otherwise reproduced, in
each case in form satisfactory to the Trustee). Temporary Securities of any
series shall be issuable as Registered Securities without coupons, or as
Unregistered Securities with or without coupons attached thereto, of any
authorized denomination, and substantially in the form of the definitive
Securities of such series but with such omissions, insertions and variations
as may be appropriate for temporary Securities, all as may be determined by
the Issuer with the concurrence of the Trustee as evidenced by the execution
and authentication thereof. Temporary Securities may contain such references
to any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Registered Securities of such series may be surrendered in
exchange therefor without charge at each office or agency to be maintained by
the Issuer for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer for such
purpose as specified pursuant to Section 2.3, and the Trustee shall
authenticate and make available for delivery in exchange for such temporary
Securities of such series an equal aggregate principal amount of definitive
Securities of the same series having authorized denominations and, in the case
of Unregistered Securities, having attached thereto any appropriate Coupons.
Until so exchanged, the temporary Securities of any series shall be entitled
to the same benefits under this Indenture as definitive Securities of such
series, unless otherwise established pursuant to Section 2.3. The provisions
of this Section are subject to any restrictions or limitations on the issue
and delivery of temporary Unregistered Securities of any series that may be
established pursuant to Section 2.3 (including any provision that Unregistered
Securities of such series initially be issued in the form of a single global
Unregistered Security to be delivered to a depositary or agency located outside
the United States and the procedures pursuant to which definitive or global
Unregistered Securities of such series would be issued in exchange for such
temporary global Unregistered Security).
SECTION 2.12 CUSIP Numbers. The Issuer in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Issuer will promptly notify the Trustee of any change in the
CUSIP numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at
the respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid
while such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable pursuant
to the terms of such Security) shall be paid, as to the installments of
interest evidenced by Coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if any,
only upon presentation of such Securities for notation thereon of the payment
of such interest, in each case subject to any restrictions that may be
established pursuant to Section 2.3. The interest on Registered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only to or upon the written order of the Holders
thereof and, at the option of the Issuer, may be paid by wire transfer or by
mailing checks for such interest payable to or upon the written order of such
Holders at their last addresses as they appear on the registry books of the
Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any
Registered Securities are authorized for issuance pursuant to this Indenture
or are outstanding hereunder, the Issuer will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Registered
Securities of each series may be presented for payment, where the Securities
of each series may be presented for exchange or conversion as is provided in
this Indenture and, if applicable, pursuant to Section 2.3 and where the
Registered Securities of each series may be presented for registration of
transfer as in this Indenture provided.
The Issuer will maintain one or more offices or agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any stock
exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on any
Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an agency of the Issuer within the United
States nor will any payment be made by transfer to an account in, or by mail
to an address in, the United States unless pursuant to applicable United
States laws and regulations then in effect such payment can be made without
adverse tax consequences to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and Coupons
appertaining thereto that are payable in Dollars may be made at an agency of
the Issuer maintained in the Borough of Manhattan, The City of New York if such
payment in Dollars at each agency maintained by the Issuer outside the United
States for payment on such Unregistered Securities is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City
of New York, an office or agency where notices and demands to or upon the
Issuer in respect of the Securities of any series, the Coupons appertaining
thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the
location of each such office or agency and of any change of location thereof.
In case the Issuer shall fail to maintain any agency required by this Section
to be located in the Borough of Manhattan, The City of New York, or shall fail
to give such notice of the location or of any change in the location of any of
the above agencies, presentations and demands may be made and notices may be
served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of a series and any
Coupons appertaining thereto may be presented for payment, where the
Securities of that series may be presented for exchange as provided in this
Indenture and pursuant to Section 2.3 and where the Registered Securities of
that series may be presented for registration of transfer as in this Indenture
provided, and the Issuer may from time to time rescind any such designation,
as the Issuer may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain the agencies provided for in this Section. The Issuer
will give to the Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on the Securities of
such series (whether such sums have been paid to it by the Issuer or
by any other obligor on the Securities of such series) in trust for
the benefit of the Holders of the Securities of such series, or
Coupons appertaining thereto, if any, or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to
make any payment of the principal of or interest on the Securities of
such series when the same shall be due and payable, and
(c) that it will pay any such sums so held in trust by it to
the Trustee upon the Trustee's written request at any time during the
continuance of the failure referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal
of or interest on the Securities of such series, deposit with the paying agent
a sum sufficient to pay such principal or interest so becoming due, and
(unless such paying agent is the Trustee) the Issuer will promptly notify the
Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to
the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the Securities of
such series or the Coupons appertaining thereto a sum sufficient to pay such
principal or interest so becoming due. The Issuer will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but
subject to Section 10.1, the Issuer may at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or all
series of Securities hereunder, or for any other reason, pay or cause to be
paid to the Trustee all sums held in trust for any such series by the Issuer
or any paying agent hereunder, as required by this Section, such sums to be
held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will
furnish to the Trustee on or before January 31 in each year (beginning with
January 31, 1997) a brief certificate (which need not comply with Section
11.5) from the principal executive, financial or accounting officer of the
Issuer stating that in the course of the performance by the signer of his
duties as an officer of the Issuer he would normally have knowledge of any
default or non-compliance by the Issuer in the performance of any covenants or
conditions contained in this Indenture, stating whether or not he has
knowledge of any such default or non-compliance and, if so, describing each
such default or non-compliance of which the signer has knowledge and the
nature thereof.
SECTION 3.6 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.10(a), 6.11, 8.2, 10.4
or 12.2, the party making such publication in the Borough of Manhattan, The
City of New York and London shall also, to the extent that notice is required
to be given to Holders of Securities of any series by applicable Luxembourg
law or stock exchange regulation, as evidenced by an Officer's Certificate
delivered to such party, make a similar publication in Luxembourg.
SECTION 3.7 SEC Reports. The Issuer shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the Commission, copies of its
annual report and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may by rules and
regulations prescribe) that the Issuer is required to file with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
SECTION 3.8 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series except as
otherwise specified as contemplated by Section 2.3 for Securities of such
series.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders. If and so long as the Trustee shall not be
the Security registrar for the Securities of any series, the Issuer and any
other obligor on the Securities will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders of the Registered Securities of such series
pursuant to Section 312 of the Trust Indenture Act of 1939 (a) semi-annually
not more than 5 days after each record date for the payment of interest on
such Registered Securities, as hereinabove specified, as of such record date
and on dates to be determined pursuant to Section 2.3 for non-interest bearing
Registered Securities in each year, and (b) at such other times as the Trustee
may request in writing, within thirty days after receipt by the Issuer of any
such request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists.
This Section intentionally left blank.
SECTION 4.3 Reports by the Issuer. The Issuer covenants to
file with the Trustee, within 15 days after the Issuer is required to file the
same with the Commission, copies of the annual reports and of the information,
documents, and other reports that the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 or pursuant to Section 314 of the Trust Indenture Act of 1939.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.4 Reports by the Trustee. Any Trustee's report
required under Section 313(a) of the Trust Indenture Act of 1939 shall be
transmitted on or before July 15 in each year beginning July 15, 1997, as
provided in Section 313(c) of the Trust Indenture Act of 1939, so long as any
Securities are Outstanding hereunder, and shall be dated as of a date
convenient to the Trustee no more than 60 days prior thereto.
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Issuer. The Issuer will promptly notify the Trustee when the Securities are
listed on any stock exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to Securities of
any series wherever used herein, means each one of the following events that
shall have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
the Issuer or any substantial part of its property or ordering the
winding up or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days; or
(b) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief
in an involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Issuer
or for any substantial part of its property, or make any general
assignment for the benefit of creditors; or
(c) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the
form of Security for such series.
If an Event of Default described in clause (a), (b) or (c)
(unless, in the case of an Event of Default described in clause (c), otherwise
provided in the relevant supplemental indenture or form of Security with
respect to such series) occurs and is continuing, then, and in each and every
such case, except for any series of Securities the principal of which shall
have already become due and payable, the entire principal amount (or, if the
Securities of any such affected series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) of all Securities of all series, and the interest accrued thereon, if
any, shall automatically become immediately due and payable, without any
demand or other notice or act on behalf of the Trustee, the Holders or any
other Person.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Securities are Original
Issue Discount Securities, such portion of the principal as may be specified
in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Issuer shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of such series (or of all the
Securities, as the case may be) and the principal of any and all Securities of
each such series (or of all the Securities, as the case may be) that shall
have become due otherwise than by acceleration (with interest upon such
principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of each such series (or at
the respective rates of interest or Yields to Maturity of all the Securities,
as the case may be) to the date of such payment or deposit) and such amount as
shall be sufficient to cover reasonable compensation to the Trustee and each
predecessor Trustee, its agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, its agents, attorneys and counsel except as a result of
negligence or bad faith, and if any and all Events of Default under the
Indenture, other than the non-payment of the principal of Securities that
shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein -- then and in every such case the
Holders of a majority in aggregate principal amount of all the Securities of
each such series, or of all the Securities, in each case voting as a single
class, then Outstanding, by written notice to the Issuer and to the Trustee,
may waive all defaults with respect to each such series (or with respect to
all the Securities, as the case may be), but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May
Prove Debt. The Issuer covenants that (a) in case default shall be made in
the payment of any installment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be
made in the payment of all or any part of the principal of any of the
Securities of any series when the same shall have become due and payable,
whether upon maturity of the Securities of such series or upon any redemption
or by declaration or otherwise -- then upon demand of the Trustee, the Issuer
will pay to the Trustee for the benefit of the Holders of the Securities of
such series the whole amount that then shall have become due and payable on
all Securities of such series, and such Coupons, for principal or interest, as
the case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series); and in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee, its agents, attorneys and counsel
except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to the
registered holders, whether or not the Securities of such Series be overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities, wherever situated
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such proceedings
or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Securities of any series, and to file such
other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of
all expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of
negligence or bad faith) and of the Securityholders allowed in any
judicial proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or such
other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the
Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of
the Securityholders to make payments to the Trustee, and, in the
event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts
as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons
appertaining to such Securities, may be enforced by the Trustee without the
possession of any of the Securities of such series or Coupons appertaining to
such Securities or the production thereof in any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses, disbursements
and compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Securities or Coupons appertaining to such Securities in respect of which such
action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of any series shall, subject
to the subordination provisions hereof, be applied in the following order at
the date or dates fixed by the Trustee and, in case of the distribution of
such moneys on account of principal or interest, upon presentation of the
several Securities and Coupons appertaining to such Securities in respect of
which monies have been collected and stamping (or otherwise noting) thereon
the payment, or issuing Securities of such series in reduced principal amounts
in exchange for the presented Securities of like series if only partially
paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee
and their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, its agents and attorneys except as a result of
negligence or bad faith;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount
then owing and unpaid upon all the Securities of such series for
principal and interest, with interest upon the overdue principal, and
(to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest at the same rate as the rate
of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series; and
in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to
the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of
any installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such
series, ratably to the aggregate of such principal and accrued and
unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the Trustee may
in its discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law
or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No
Holder of any Security of any series or of any Coupon appertaining thereto
shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of
the continuance thereof, as hereinbefore provided, and unless also the Holders
of not less than 25% in aggregate principal amount of the Securities of each
affected series then Outstanding (treated as a single class) shall have made
written request upon the Trustee to institute such action or proceedings in
its own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 5.9; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security or Coupon with every
other taker and Holder and the Trustee, that no one or more Holders of
Securities of any series or Coupons appertaining to such Securities shall have
any right in any manner whatever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other such
Holder of Securities or Coupons appertaining to such Securities, or to obtain
or seek to obtain priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all Holders of Securities of
the applicable series and Coupons appertaining to such Securities. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in this
Indenture and any provision of any Security, the right of any Holder of any
Security or Coupon to receive payment of the principal of and interest on such
Security or Coupon on or after the respective due dates expressed in such
Security or Coupon, or to institute suit for the enforcement of any such
payment on or after such respective dates, or the right to convert such
Security, if any, or to institute suit therefor shall not be impaired or
affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Section 5.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of
Securities or Coupons is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right
or power or shall be construed to be a waiver of any such Event of Default or
an acquiescence therein; and, subject to Section 5.6, every power and remedy
given by this Indenture or by law to the Trustee or to the Holders of
Securities or Coupons may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Holders of Securities or
Coupons.
SECTION 5.9 Control by Holders of Securities. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected (with all such series voting as a single class) at the time
Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; provided that such direction
shall not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section 6.1)
the Trustee shall have the right to decline to follow any such direction if
the Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors, the executive committee, or a trust committee
of directors or Responsible Officers of the Trustee shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions
or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series so
affected not joining in the giving of said direction, it being understood that
(subject to Section 6.1) the Trustee shall have no duty to ascertain whether
or not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
that is not inconsistent with such direction or directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
acceleration of the maturity of any Securities as provided in Section 5.1, the
Holders of a majority in aggregate principal amount of the Securities of all
series at the time Outstanding with respect to which an event of default shall
have occurred and be continuing (voting as a single class) may on behalf of
the Holders of all such Securities waive any past default or Event of Default
described in Section 5.1 and its consequences, except a default in respect of a
covenant or provision hereof that cannot be modified or amended without the
consent of the Holder of each Security affected. In the case of any such
waiver, the Issuer, the Trustee and the Holders of all such Securities shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, within ninety days
after the occurrence of a default with respect to the Securities of any
series, give notice of all defaults with respect to that series known to the
Trustee (i) if any Unregistered Securities of that series are then
Outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
3.6, at least once in an Authorized Newspaper in Luxembourg) and (ii) to all
Holders of Securities of such series in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act of 1939, unless in each case such
defaults shall have been cured before the mailing or publication of such
notice (the term "defaults" for the purpose of this Section being hereby
defined to mean any event or condition that is, or with notice or lapse of time
or both would become, an Event of Default); provided that, except in the case
of default in the payment of the principal of or interest on any of the
Securities of such series, or in the payment of any sinking fund installment on
such series, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a trust
committee of directors or trustees and/or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.
SECTION 5.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such series, or, in the
case of any suit relating to or arising under clause (d) or (h) of Section 5.1
(if the suit relates to Securities of more than one but less than all series),
l0% in aggregate principal amount of Securities then Outstanding and affected
thereby or 10% in aggregate principal amount of all Securities then
Outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or interest on any Security on
or after the due date expressed in such Security or any date fixed for
redemption.
SECTION 5.13 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series except as
otherwise specified as contemplated by Section 2.3 for Securities of such
series.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default that may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured
or waived) the Trustee shall exercise with respect to such series of
Securities such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or
waiving of all such Events of Default with respect to such series
that may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders pursuant to Section 5.9 relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there shall be reasonable ground
for believing that the repayment of such funds or adequate indemnity against
such liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and
subject to Section 315 of the Trust Indenture Act of 1939.
SECTION 6.2 Certain Rights of the Trustee. In furtherance of
and subject to the Trust Indenture Act of 1939, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or
any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, coupon,
security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof certified
by the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel of its choice and any
written advice or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders pursuant to
the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities that might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities
of all series affected then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against
such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor Trustee, shall
be repaid by the Issuer upon demand. The Trustee shall incur no
liability or additional liability of any kind by reason of such
inquiry or investigation; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or sufficiency of this
Indenture or of the Securities or Coupons. The Trustee shall not be
accountable for the use or application by the Issuer of any of the Securities
or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities or Coupons with the same rights it would have if it were not the
Trustee or such agent and may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions
of Section 10.4 hereof, all moneys received by the Trustee shall, until used
or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the
extent required by mandatory provisions of law. Neither the Trustee nor any
agent of the Issuer or the Trustee shall be under any liability for interest
on any moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Issuer covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this Indenture or the trusts hereunder and its duties hereunder, including the
costs and expenses of defending itself against or investigating any claim of
liability in the premises. The obligations of the Issuer under this Section
to compensate and indemnify the Trustee and each predecessor Trustee and to
pay or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be a senior claim to that of the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Securities or
Coupons, and the Securities are hereby subordinated to such senior claim.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(a) or Section
5.1(b), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 6.7 Right of Trustee to Rely on Officer's Certificate,
etc. Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and
established by an Officer's Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered
or omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION 6.8 Indentures Not Creating Potential Conflicting
Interests for the Trustee. The following indentures are hereby specifically
described for the purposes of Section 310(b)(1) of the Trust Indenture Act of
1939: this Indenture with respect to the Securities of any other series.
SECTION 6.9 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all times be a
corporation or banking association organized and doing business under the laws
of the United States of America or of any State or the District of Columbia
having a combined capital and surplus of at least $5,000,000, and that is
authorized under such laws to exercise corporate trust powers and is subject to
supervision or examination by Federal, State or District of Columbia
authority. Such corporation or banking association shall have a place of
business in the Borough of Manhattan, The City of New York if there be such a
corporation in such location willing to act upon reasonable and customary terms
and conditions. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
The provisions of this Section 6.9 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all series of Securities
by giving written notice of resignation to the Issuer and (i) if any
Unregistered Securities of a series affected are then Outstanding, by giving
notice of such resignation to the Holders thereof, by publication at least
once in an Authorized Newspaper in the Borough of Manhattan, The City of New
York, and at least once in an Authorized Newspaper in London (and, if required
by Section 3.6, at least once in an Authorized Newspaper in Luxembourg), (ii)
if any Unregistered Securities of a series affected are then Outstanding, by
mailing notice of such resignation to the Holders thereof who have filed their
names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act of 1939 at such addresses as were so furnished to the Trustee
and (iii) by mailing notice of such resignation to the Holders of then
Outstanding Registered Securities of each series affected at their addresses as
they shall appear on the registry books. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed
with respect to any series and have accepted appointment within 30 days after
the mailing of such notice of resignation, the resigning trustee may petition
any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security
or Securities of the applicable series for at least six months may, subject to
the provisions of Section 5.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or
by any Securityholder who has been a bona fide Holder of a Security
or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and Section 310(a) of the Trust
Indenture Act of 1939 and shall fail to resign after written request
therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such
series by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to
the provisions of Section 315(e) of the Trust Indenture Act of 1939, any
Securityholder who has been a bona fide Holder of a Security or Securities of
such series for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee with respect
to such series. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee. (c) The Holders of a majority in aggregate principal amount of
the Securities of each series at the time outstanding may at any time remove
the Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer
the evidence provided for in Section 7.1 of the action in that regard taken by
the Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with
like effect as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the successor
trustee, upon payment of its charges then unpaid, the trustee ceasing to act
shall, subject to Section 10.4, pay over to the successor trustee all moneys
at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a prior claim upon all
property or funds held or collected by such trustee to secure any amounts then
due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
Trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto,
which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6.11 unless at the time
of such acceptance such successor trustee shall be qualified under Section
310(b) of the Trust Indenture Act of 1939 and eligible under the provisions of
Section 6.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Issuer shall give notice thereof (a) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once
in an Authorized Newspaper in London (and, if required by Section 3.9, at
least once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof
who have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act of 1939, by mailing such notice to such
Holders at such addresses as were so furnished to the Trustee (and the Trustee
shall make such information available to the Issuer for such purpose) and (c)
to the Holders of Registered Securities of each series affected, by mailing
such notice to such Holders at their addresses as they shall appear on the
registry books. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 6.10.
If the Issuer fails to give such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provisions of Section 6.9,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any of the Securities of any series
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor Trustee
and deliver such Securities so authenticated; and, in case at that time any of
the Securities of any series shall not have been authenticated, any successor
to the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force that it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of
the Trustee shall have; provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities of any
series in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 6.13
This Section intentionally left blank.
SECTION 6.14 Appointment of Authenticating Agent. As long as
any Securities of a series remain Outstanding, the Trustee may, by an
instrument in writing, appoint with the approval of the Issuer an
authenticating agent (the "Authenticating Agent"), which shall be authorized
to act on behalf of the Trustee to authenticate Securities, including
Securities issued upon exchange, registration of transfer, partial redemption
or pursuant to Section 2.9. Securities of each such series authenticated by
such Authenticating Agent shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee. Whenever reference is made in this Indenture to the authentication
and delivery of Securities of any series by the Trustee or to the Trustee's
Certificate of Authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent for such series and a Certificate of Authentication executed on behalf
of the Trustee by such Authenticating Agent. Such Authenticating Agent shall
at all times be a corporation organized and doing business under the laws of
the United States of America or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $5,000,000 (determined as provided in Section 6.9 with respect to the
Trustee) and subject to supervision or examination by Federal or State
authority.
Any corporation into which any Authenticating Agent may be
merged or converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the Trustee and to
the Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect
to one or more series of Securities, the Trustee shall upon receipt of an
Issuer Order appoint a successor Authenticating Agent and the Issuer shall
provide notice of such appointment to all Holders of Securities of such series
in the manner and to the extent provided in Section 11.4. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent.
The Issuer agrees to pay to the Authenticating Agent for such series from time
to time reasonable compensation. The Authenticating Agent for the Securities
of any series shall have no responsibility or liability for any action taken
by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
SECTION 6.15 Preferential Collection of Claims. If and
when the Trustee shall be or become a creditor of the Issuer (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of claims against the
Issuer (or any such other obligor).
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Sections 6.1 and 6.2) conclusive
in favor of the Trustee and the Issuer, if made in the manner provided in this
Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in the
following manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments
of deeds or administer oaths that the person executing such
instruments acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such
notary or other such officer. Where such execution is by or on
behalf of any legal entity other than an individual, such certificate
or affidavit shall also constitute sufficient proof of the authority
of the person executing the same. The fact of the holding by any
Holder of an Unregistered Security of any series, and the identifying
number of such Security and the date of his holding the same, may be
proved by the production of such Security or by a certificate
executed by any trust company, bank, banker or recognized securities
dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each
such certificate shall be dated and shall state that on the date
thereof a Security of such series bearing a specified identifying
number was deposited with or exhibited to such trust company, bank,
banker or recognized securities dealer by the person named in such
certificate. Any such certificate may be issued in respect of one or
more Unregistered Securities of one or more series specified therein.
The holding by the person named in any such certificate of any
Unregistered Securities of any series specified therein shall be
presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding
(1) another certificate bearing a later date issued in respect of the
same Securities shall be produced, or (2) the Security of such series
specified in such certificate shall be produced by some other person,
or (3) the Security of such series specified in such certificate
shall have ceased to be Outstanding. Subject to Sections 6.1 and
6.2, the fact and date of the execution of any such instrument and
the amount and numbers of Securities of any series held by the person
so executing such instrument and the amount and numbers of any
Security or Securities for such series may also be proven in
accordance with such reasonable rules and regulations as may be
prescribed by the Trustee for such series or in any other manner that
the Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership of
such Securities shall be proved by the Security register or by a
certificate of the Security registrar.
The Issuer may set a record date for purposes of determining
the identity of Holders of Registered Securities of any series entitled to
vote or consent to any action referred to in Section 7.1, which record date
may be set at any time or from time to time by notice to the Trustee, for any
date or dates (in the case of any adjournment or reconsideration) not more
than 60 days nor less than five days prior to the proposed date of such vote
or consent, and thereafter, notwithstanding any other provisions hereof, with
respect to Registered Securities of any series, only Holders of Registered
Securities of such series of record on such record date shall be entitled to
so vote or give such consent or revoke such vote or consent.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of and, subject to the provisions of this
Indenture, interest on such Security and for all other purposes; and neither
the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary. The Issuer, the Trustee and any agent
of the Issuer or the Trustee may treat the Holder of any Unregistered Security
and the Holder of any Coupon as the absolute owner of such Unregistered
Security or Coupon (whether or not such Unregistered Security or Coupon shall
be overdue) for the purpose of receiving payment thereof or on account thereof
and for all other purposes and neither the Issuer, the Trustee, nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such person, or upon his order, shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Unregistered Security
or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding.
In determining whether the Holders of the requisite aggregate principal amount
of Outstanding Securities of any or all series have concurred in any
direction, consent or waiver under this Indenture, Securities that are owned
by the Issuer or any other obligor on the Securities with respect to which
such determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver only Securities that the Trustee knows
are so owned shall be so disregarded. Securities so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Issuer or any
other obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of
the Trustee, the Issuer shall furnish to the Trustee promptly an Officer's
Certificate listing and identifying all Securities, if any, known by the
Issuer to be owned or held by or for the account of any of the above-described
persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled
to accept such Officer's Certificate as conclusive evidence of the facts
therein set forth and of the fact that all Securities not listed therein are
Outstanding for the purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto, which comply with the Trust Indenture Act of 1939, as
then in effect, for one or more of the following purposes:
(a) to add to the covenants of the Issuer for the benefit of
the Holders, and to make the occurrence, or the occurrence and the
continuance, of a default in any such additional covenants an Event
of Default, or to surrender any right or power herein conferred upon
the Issuer; or
(b) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 6.11; or
(c) to establish the forms or terms of Securities of any
series or of the Coupons appertaining to such Securities as permitted
by Sections 2.1 and 2.3; or
(d) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other provisions
herein, or to make any other provisions with respect to such matters
or questions arising under this Indenture, provided such action shall
not adversely affect the interests of the Holders.
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 6.11; and
(f) to make any changes to the terms of this Indenture to
clarify inconsistencies with the provisions of the prospectus
supplement dated October 31, 1996 (which prospectus supplement
relates to the Company's Premium Equity Redemption Cumulative Security
Units--PERCS Units), including, without limitation, to insert
additional provisions inconsistent with any existing provisions
hereof.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations that may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than 66 2/3% in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as one class), the Issuer, when authorized by a resolution
of its Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order),
and the Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto, which comply with the Trust
Indenture Act of 1939, as then in effect, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any
manner the rights of the Holders of the Securities of each such series or of
the Coupons appertaining to such Securities, except that no such supplemental
indenture shall (a) extend the final maturity of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof, or make
the principal thereof (including any amount in respect of original issue
discount), or interest thereon payable in any coin or currency other than that
provided in the Securities and Coupons or in accordance with the terms
thereof, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof pursuant to Section 5.1 or the amount thereof provable in bankruptcy
pursuant to Section 5.2, or alter the provisions of Section 11.11 or 11.12 or
impair or affect the right of any Securityholder to institute suit for the
payment or conversion (if applicable) thereof or, if the Securities provide
therefor, any right of repayment at the option of the Securityholder and any
right to convert, in each case without the consent of the Holder of each
Security so affected, or (b) reduce the aforesaid percentage of Securities of
any series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected.
A supplemental indenture that changes or eliminates any
covenant or other provision of this Indenture that has expressly been included
solely for the benefit of one or more particular series of Securities, or that
modifies the rights of Holders of Securities of such series, or of Coupons
appertaining to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order) certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Holders of the
Securities as aforesaid and other documents, if any, required by Section 7.1,
the Trustee shall join with the Issuer in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (i) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they shall
appear on the Security register, (ii) if any Unregistered Securities of a
series affected thereby are then Outstanding, to the Holders thereof who have
filed their names and addresses with the Trustee pursuant to Section 313(c)(2)
of the Trust Indenture Act of 1939, by mailing a notice thereof by first-class
mail to such Holders at such addresses as were so furnished to the Trustee and
(iii) if any Unregistered Securities of a series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice thereof at
least once in an Authorized Newspaper in the Borough of Manhattan, The City of
New York and at least once in an Authorized Newspaper in London (and, if
required by Section 3.6, at least once in an Authorized Newspaper in
Luxembourg), and in each case such notice shall set forth in general terms the
substance of such supplemental indenture. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer and the
Holders of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Officer's
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article 8 complies with the
applicable provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and made available for delivery in exchange for
the Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Issuer May Consolidate, Etc., Only on Certain
Terms. The Issuer shall not consolidate with or merge into any other Person
or transfer or lease its properties and assets substantially as an entirety to
any Person, and the Issuer shall not permit any other Person to consolidate
with or merge into the Issuer, unless:
(a) either the Issuer shall be the continuing corporation, or
the corporation (if other than the Issuer) formed by such
consolidation or into which the Issuer is merged or to which the
properties and assets of the Issuer substantially as an entity are
transferred or leased shall be a corporation organized and existing
under the laws of the United States of America or any State thereof
or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the
Issuer under the Securities and this Indenture);
(b) immediately after giving effect to such transaction, no
Event of Default, and no event that, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(c) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer or lease and any such supplemental
indenture comply with this Article and that all conditions precedent
provided for herein relating to such transaction have been complied
with.
SECTION 9.2 Successor Corporation Substituted. The successor
corporation formed by such consolidation or into which the Issuer is merged or
to which such transfer or lease is made shall succeed to and be substituted
for, and may exercise every right and power of, the Issuer under this
Indenture with the same effect as if such successor corporation had been named
as the Issuer herein, and thereafter (except in the case of a lease to another
Person) the predecessor corporation shall be relieved of all obligations and
covenants under the Indenture and the Securities and, in the event of such
conveyance or transfer, any such predecessor corporation may be dissolved and
liquidated.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If
at any time (a) the Issuer shall have paid or caused to be paid the principal
of and interest on all the Securities of any series Outstanding hereunder and
all unmatured Coupons appertaining thereto (other than Securities of such
series and Coupons appertaining thereto that have been destroyed, lost or
stolen and that have been replaced or paid as provided in Section 2.9) as and
when the same shall have become due and payable, or (b) the Issuer shall have
delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated and all unmatured Coupons appertaining thereto
(other than any Securities of such series and Coupons appertaining thereto
that shall have been destroyed, lost or stolen and that shall have been
replaced or paid as provided in Section 2.9) or (c) in the case of any series
of Securities where the exact amount (including the currency of payment) of
principal of and interest due on which can be determined at the time of making
the deposit referred to in clause (ii) below, (i) all the Securities of such
series and all unmatured Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation shall have become due and payable,
or are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and (ii) the Issuer shall have
irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount in cash (other than moneys repaid by the Trustee or any
paying agent to the Issuer in accordance with Section 10.4) or, in the case of
any series of Securities the payments on which may only be made in Dollars,
direct obligations of the United States of America, backed by its full faith
and credit ("U.S. Government Obligations"), maturing as to principal and
interest at such times and in such amounts as will insure the availability of
cash, or a combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal and
interest on all Securities of such series and Coupons appertaining thereto on
each date that such principal or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such payments are due
and payable in accordance with the terms of the Indenture and the Securities
of such series; and if, in any such case, the Issuer shall also pay or cause
to be paid all other sums payable hereunder by the Issuer, then this Indenture
shall cease to be of further effect (except as to (i) rights of registration
of transfer and exchange of Securities of such Series and of Coupons
appertaining thereto and the Issuer's right of optional redemption, if any,
(ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities
or Coupons, (iii) rights of holders of Securities and Coupons appertaining
thereto to receive payments of principal thereof and interest thereon, upon
the original stated due dates therefor (but not upon acceleration), and
remaining rights of the Holders to receive mandatory sinking fund payments,
if any, (iv) the rights, obligations, duties and immunities of the Trustee
hereunder, (v) the rights of the Holders of Securities of such series and
Coupons appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them, and (vi)
the obligations of the Issuer under Section 3.2) and the Trustee, on demand of
the Issuer accompanied by an Officer's Certificate and an Opinion of Counsel
and at the cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture; provided,
that the rights of Holders of the Securities and Coupons to receive amounts in
respect of principal of and interest on the Securities and Coupons held by
them shall not be delayed longer than required by then-applicable mandatory
rules or policies of any securities exchange upon which the Securities are
listed. The Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities of such series.
(B) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board Resolution,
Officer's Certificate or indenture supplemental hereto provided pursuant to
Section 2.3. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the exact amounts
(including the currency of payment) of principal of and interest due on which
can be determined at the time of making the deposit referred to in clause (a)
below, the Issuer shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of such a series and the Coupons
appertaining thereto on the date of the deposit referred to in subparagraph
(a) below, and the provisions of this Indenture with respect to the Securities
of such series and Coupons appertaining thereto shall no longer be in effect
(except as to (i) rights of registration of transfer and exchange of
Securities of such series and of Coupons appertaining thereto and the Issuer's
right of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of
Securities and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration), and remaining rights of the Holders to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations, duties
and immunities of the Trustee hereunder, (v) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to
all or any of them and (vi) the obligations of the Issuer under Section 3.2)
and the Trustee, at the expense of the Issuer, shall at the Issuer's request,
execute proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the
Securities of such series and Coupons appertaining thereto (i) cash
in an amount, or (ii) in the case of any series of Securities the
payments on which may only be made in Dollars, U.S. Government
Obligations, maturing as to principal and interest at such times and
in such amounts as will insure the availability of cash or (iii) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A) the
principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is
due and payable and (B) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance with
the terms of the Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, any agreement or instrument to which
the Issuer is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or
(y) since the date hereof, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the Securities of such
series and Coupons appertaining thereto will not recognize income,
gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and
discharge had not occurred; and
(d) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with.
(C) The Issuer shall be released from its obligations under
Section 9.1 with respect to the Securities of any series, and any Coupons
appertaining thereto, Outstanding on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of any series, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in such
Section, whether directly or indirectly by reason of any reference elsewhere
herein to such Section or by reason of any reference in such Section to any
other provision herein or in any other document and such omission to comply
shall not constitute an Event of Default under Section 5.1, but the remainder
of this Indenture and such Securities and Coupons shall be unaffected thereby.
The following shall be the conditions to application of this subsection (C) of
this Section 10.1:
(a) The Issuer has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of the Securities
of such series and coupons appertaining thereto, (i) cash in an
amount, or (ii) in the case of any series of Securities the payments
on which may only be made in Dollars, U.S. Government Obligations
maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash or (iii) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A) the
principal and interest on all Securities of such series and Coupons
appertaining thereto and (B) any mandatory sinking fund payments on
the day on which such payments are due and payable in accordance with
the terms of the Indenture and the Securities of such series;
(b) No Event of Default or event that with notice or lapse of
time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit;
(c) Such covenant defeasance shall not cause the Trustee to
have a conflicting interest as defined in Section 6.8 and for
purposes of the Trust Indenture Act of 1939 with respect to any
securities of the Issuer;
(d) Such covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Issuer is a party or by
which it is bound;
(e) Such covenant defeasance shall not cause any Securities
then listed on any registered national securities exchange under the
Securities Exchange Act of 1934, as amended, to be delisted;
(f) The Issuer shall have delivered to the Trustee an
Officer's Certificate and Opinion of Counsel to the effect that the
Holders of the Securities of such series and Coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance
had not occurred; and
(g) The Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to the covenant
defeasance contemplated by this provision have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.4, all moneys deposited with the
Trustee (or other trustee) pursuant to Section 10.1 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series and of Coupons appertaining thereto for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any
Security of any series or Coupons attached thereto and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Securities
of such series and of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for any payment
that such Holder may be entitled to collect, and all liability of the Trustee
or any paying agent with respect to such moneys shall thereupon cease;
provided, however, that the Trustee or such paying agent, before being
required to make any such repayment with respect to moneys deposited with it
for any payment (a) in respect of Registered Securities of any series, shall
at the expense of the Issuer, mail by first-class mail to Holders of such
Securities at their addresses as they shall appear on the Security register,
and (b) in respect of Unregistered Securities of any series, shall at the
expense of the Issuer cause to be published once, in an Authorized Newspaper in
the Borough of Manhattan, The City of New York and once in an Authorized
Newspaper in London (and if required by Section 3.6, once in an Authorized
Newspaper in Luxembourg), notice, that such moneys remain and that, after a
date specified therein, which shall not be less than thirty days from the date
of such mailing or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 10.1 or the principal or interest received in
respect of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
Coupons appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Securities and the Coupons appertaining
thereto.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons. Nothing in this Indenture, in
the Securities or in the Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any person, firm or corporation, other
than the parties hereto and their successors and the holders of Senior
Indebtedness and the Holders of the Securities or Coupons, if any, any legal or
equitable right, remedy or claim under this Indenture or under any covenant or
provision herein contained, all such covenants and provisions being for the
sole benefit of the parties hereto and their successors, the holders of the
Senior Indebtedness and the Holders of the Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer shall bind its successors
and assigns, whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons. Any notice or demand that by any provision
of this Indenture is required or permitted to be given or served by the
Trustee or by the Holders of Securities or Coupons to or on the Issuer may be
given or served by being deposited postage prepaid, first-class mail (except
as otherwise specifically provided herein) addressed (until another address of
the Issuer is filed by the Issuer with the Trustee) to SunAmerica Inc., 11601
Wilshire Boulevard, Los Angeles, California 90025-1748, Attention: Secretary.
Any notice, direction, request or demand by the Issuer or any Holder of
Securities or Coupons to or upon the Trustee shall be deemed to have been
sufficiently given or served by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein) addressed (until
another address of the Trustee is filed by the Trustee with the Issuer) to The
Bank of New York, 101 Barclay Street, Floor 21W, New York, NY 10286,
Attention: Corporate Trust Administration.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder entitled thereto, at his last address as it
appears in the Security register. In any case where notice to such Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5 Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that the
person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with and (d) a statement as to whether or not,
in the opinion of such person, such condition or covenant has been complied
with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any certificate, statement or opinion of counsel
may be based, insofar as it relates to factual matters, information with
respect to which is in the possession of the Issuer, upon the certificate,
statement or opinion of or representations by an officer or officers of the
Issuer, unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants in the employ of the Issuer, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for redemption or
repayment of any such Security or Coupon shall not be a Business Day, then
payment of interest or principal need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and no interest
shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by, or with
another provision (an "incorporated provision") included in this Indenture by
operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act of
1939, such imposed duties or incorporated provision shall control.
SECTION 11.8 New York Law to Govern. This Indenture and each
Security and Coupon shall be deemed to be a contract under the laws of the
State of New York without regard to the conflicts of law principles thereof,
and for all purposes shall be construed in accordance with the laws of such
State, except as may otherwise be required by mandatory provisions of law.
SECTION 11.9 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officer's Certificate delivered pursuant to
Section 2.3 of this Indenture with respect to a particular series of
Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of
Securities of all series or all series affected by a particular action at the
time Outstanding and, at such time, there are Outstanding Securities of any
series that are denominated in a coin or currency other than Dollars
(including ECUs), then the principal amount of Securities of such series that
shall be deemed to be Outstanding for the purpose of taking such action shall
be that amount of Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section 11.11, Market Exchange Rate shall
mean the noon Dollar buying rate in New York City for cable transfers of that
currency as published by the Federal Reserve Bank of New York; provided,
however, in the case of ECUs, Market Exchange Rate shall mean the rate of
exchange determined by the Commission of the European Communities (or any
successor thereto) as published in the Official Journal of the European
Communities (such publication or any successor publication, the "Journal").
If such Market Exchange Rate is not available for any reason with respect to
such currency, the Trustee shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York
or, in the case of ECUs, the rate of exchange as published in the Journal, as
of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in
the country of issue of the currency in question, which for purposes of the
ECU shall be Brussels, Belgium, or such other quotations or, in the case of
ECU, rates of exchange as the Trustee shall deem appropriate. The provisions
of this paragraph shall apply in determining the equivalent principal amount in
respect of Securities of a series denominated in a currency other than Dollars
in connection with any action taken by Holders of Securities pursuant to the
terms of this Indenture.
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of or interest on the Securities of
any series (the "Required Currency") into a currency in which a judgment will
be rendered (the "Judgment Currency"), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the day on which final unappealable judgment is entered, unless
such day is not a New York Banking Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which final unappealable judgment is
entered and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance
with subsection (a)), in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be
payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of recovering in the
Required Currency the amount, if any, by which such actual receipt shall fall
short of the full amount of the Required Currency so expressed to be payable
and (iii) shall not be affected by judgment being obtained for any other sum
due under this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series that are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any series to
be redeemed as a whole or in part at the option of the Issuer shall be given
by mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities of such series at their last addresses as they
shall appear upon the registry books. Notice of redemption to the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of
the Trust Indenture Act of 1939 shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 days and not
more than 60 prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Issuer, the Trustee shall make such information available
to the Issuer for such purpose). Notice of redemption to all other Holders of
Unregistered Securities shall be published in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and in an Authorized Newspaper in
London (and, if required by Section 3.6, in an Authorized Newspaper in
Luxembourg), in each case, once in each of three successive calendar weeks, the
first publication to be not less than 30 nor more than 60 days prior to the
date fixed for redemption. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or
not the Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify, the
principal amount and CUSIP numbers of each Security of such series held by
such Holder to be redeemed, the date fixed for redemption, the redemption
price, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities and, in the case of Securities
with Coupons attached thereto, of all Coupons appertaining thereto maturing
after the date fixed for redemption, that such redemption is pursuant to the
mandatory or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as specified in
such notice and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue and will specify any
conversion price then in effect and when any right to convert such Security on
part thereof to be redeemed will expire. In case any Security of a series is
to be redeemed in part only the notice of redemption shall state the portion
of the principal amount thereof to be redeemed and shall state that on and
after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the redemption date
all the Securities of such series so called for redemption (other than those,
if any, theretofore surrendered for conversion) at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If
any Security called for redemption is converted pursuant hereto, any money
deposited with the Trustee or any paying agent or so segregated and held in
trust for the redemption of such Security shall be paid to the Issuer upon the
Issuer's request, or, if then held by the Issuer, shall be discharged from
such trust. The Issuer will deliver to the Trustee at least 70 days prior to
the date fixed for redemption an Officer's Certificate stating the aggregate
principal amount and CUSIP numbers of Securities to be redeemed and the date
fixed for redemption. In case of a redemption at the election of the Issuer
prior to the expiration of any restriction on such redemption, the Issuer
shall deliver to the Trustee, prior to the giving of any notice of redemption
to Holders pursuant to this Section, an Officer's Certificate stating that such
restriction has been complied with.
If less than all the Securities of a series are to be redeemed,
the Trustee shall select, in such manner as it shall deem appropriate and
fair, Securities of such Series to be redeemed in whole or in part.
Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Issuer in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any
series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security that has
been or is to be redeemed. If any Security selected for partial redemption is
surrendered for conversion after such selection, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Upon any redemption of less than all the Securities of any
series, the Issuer and the Trustee may treat as outstanding any Securities of
such series surrendered for conversion during the period of 15 days next
preceding the mailing of a notice of redemption, and need not treat as
outstanding any Security authenticated and delivered during such period in
exchange for the unconverted portion of any Security of such series converted
in part during such period.
SECTION 12.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue, and the unmatured Coupons, if
any, appertaining thereto shall be void, and, except as provided in Sections
6.5 and 10.4, such Securities shall cease from and after the date fixed for
redemption to be convertible or entitled to any other benefit or security
under this Indenture, and the Holders thereof shall have no right in respect
of such Securities except the right to receive the redemption price thereof and
unpaid interest to the date fixed for redemption. On presentation and
surrender of such Securities at a place of payment specified in said notice,
together with all Coupons, if any, appertaining thereto maturing after the
date fixed for redemption, said Securities or the specified portions thereof
shall be paid and redeemed by the Issuer at the applicable redemption price,
together with interest accrued thereon to the date fixed for redemption;
provided that payment of interest becoming due on or prior to the date fixed
for redemption shall be payable in the case of Securities with Coupons
attached thereto, to the Holders of the Coupons for such interest upon
surrender thereof, and in the case of Registered Securities, to the Holders of
such Registered Securities registered as such on the relevant record date
subject to the terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security and such Security shall remain convertible in
accordance with its terms until paid or duly provided for.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons maturing
after the date fixed for redemption, the surrender of such missing Coupon or
Coupons may be waived by the Issuer and the Trustee, if there be furnished to
each of them such security or indemnity as they may require to save each of
them harmless.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and make available for
delivery to or on the order of the Holder thereof, at the expense of the
Issuer, a new Security or Securities of such series, of authorized
denominations, in principal amount equal to the unredeemed portion of the
Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in an Officer's Certificate delivered to the Trustee at
least 40 days prior to the last date on which notice of redemption may be
given as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified
in such written statement as directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer or converted and delivered to the Trustee
for cancellation pursuant to Section 2.10, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this
Section, or (c) receive credit for Securities of such series (not previously
so credited) redeemed by the Issuer through any optional redemption provision
contained in the terms of such series. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee an
Officer's Certificate (which need not contain the statements required by
Section 11.5) (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by credit
of Securities of such series and the basis for such credit, (b) stating that
none of the Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Issuer intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment that
the Issuer intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid that have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee
with such Officer's Certificate (or reasonably promptly thereafter if
acceptable to the Trustee). Such Officer's Certificate shall be irrevocable
and upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure of
the Issuer, on or before any such 60th day, to deliver such Officer's
Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of
such series in respect thereof and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) or a lesser sum in Dollars (or the equivalent thereof in any Foreign
Currency or ECU) if the Issuer shall so request with respect to the Securities
of any particular series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such series at
the sinking fund redemption price together with accrued interest to the date
fixed for redemption. If such amount shall be $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) or less and the Issuer makes no such
request then it shall be carried over until a sum in excess of $50,000 (or the
equivalent thereof in any Foreign Currency or ECU) is available. The Trustee
shall select, in the manner provided in Section 12.2, for redemption on such
sinking fund payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be, and shall (if requested in
writing by the Issuer) inform the Issuer of the serial numbers of the
Securities of such series (or portions thereof) so selected. Securities shall
be excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officer's Certificate
delivered to the Trustee at least 60 days prior to the sinking fund payment
date as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified
in such Officer's Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer. The
Trustee, in the name and at the expense of the Issuer (or the Issuer, if it
shall so request the Trustee in writing) shall cause notice of redemption of
the Securities of such series to be given in substantially the manner provided
in Section 12.2 (and with the effect provided in Section 12.3) for the
redemption of Securities of such series in part at the option of the Issuer.
The amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be
applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities
of such series at maturity. The Issuer's obligation to make a mandatory or
optional sinking fund payment shall automatically be reduced by an amount
equal to the sinking fund redemption price allocable to any Securities or
portions thereof called for redemption pursuant to the preceding paragraph on
any sinking fund payment date and converted; provided, that if the Trustee is
not the conversion agent for the Securities, the Issuer or such conversion
agent shall give the Trustee written notice prior to the date fixed for
redemption of the principal amount of Securities or portions thereof so
converted.
On or before each sinking fund payment date, the Issuer shall
pay to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of
redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event
of Default, be deemed to have been collected under Article Five and held for
the payment of all such Securities. In case such Event of Default shall have
been waived as provided in Section 5.10 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date
in accordance with this Section to the redemption of such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of November 1, 1996.
SUNAMERICA INC.
By _______________________
Name: James R. Belardi
Title:Executive Vice
President
[CORPORATE SEAL]
Attest:
By _______________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By _____________________
Name: Vivian Georges
Title: Assistant Vice
President
[CORPORATE SEAL]
Attest:
By _______________________
Name:
Title:
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On this 1st day of November, 1996 before me personally came James R. Belardi,
to me personally known, who, being by me duly sworn, did depose and say that
he resides at 1242 Berkeley Street, Santa Monica, California
90404, that he is the Executive Vice President of SunAmerica Inc., one of the
corporations described in and that executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
_______________________
Notary Public
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this 1st day of November, 1996 before me personally came Vivian Georges, to
me personally known, who, being by me duly sworn, did depose and say that she
resides at 526 East Broad Street, Westfield, New Jersey, that she is an
Assistant Vice President of THE BANK OF NEW YORK, one of the corporations
described in and that executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
_____________________
Notary Public
EXHIBIT 4.6
- ------------------------------------------------------------------------------
SUNAMERICA INC.
AND
THE BANK OF NEW YORK, Trustee
First Supplemental Indenture
Dated as of November 6, 1996
To
Prepaid Security Indenture
Dated as of November 1, 1996
-------------------
Prepaid Premium Equity Redemption Cumulative Securities
- ------------------------------------------------------------------------------
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of November 6, 1996 (this
"First Supplemental Indenture"), between SUNAMERICA INC., a Maryland
corporation (the "Issuer"), and THE BANK OF NEW YORK, a New York banking
corporation, as trustee (the "Trustee") under the Indenture dated as of
November 1, 1996 between the Issuer and the Trustee (the "Indenture"),
WHEREAS, the Issuer executed and delivered the Indenture to the
Trustee to provide for the future issuance of its unsecured debentures, notes
or other evidences of indebtedness to be issued in one or more series (the
"Securities"); and
WHEREAS, pursuant to the terms of the Indenture, the Issuer desires
to provide for the establishment of a new series of its Security Units to be
known as its Prepaid Premium Equity Redemption Cumulative Securities (the
"Prepaid Securities"), the form and substance of such Prepaid Securities and
the terms, provisions and conditions thereof to be set forth as provided in
the Indenture and this First Supplemental Indenture; and
WHEREAS, the Issuer has issued its Premium Equity Redemption
Cumulative Security Units, 8.5% PERCS Units (the "PERCS Units"), pursuant to a
Purchase Contract Agreement (the "Purchase Contract Agreement") dated as of
November 6, 1996, between the Issuer and The Bank of New York, as purchase
contract agent, which PERCS Units may, under certain circumstances described
in the Purchase Contract Agreement, be settled prior to the Final Settlement
Date (as defined in Section 1.01) by holders thereof in exchange for Prepaid
Securities; and
WHEREAS, the Issuer desires and has requested the Trustee to join
with it in the execution and delivery of this First Supplemental Indenture,
and all requirements necessary to make this First Supplemental Indenture a
valid instrument, in accordance with its terms, and to make the Prepaid
Securities, when executed by the Issuer and authenticated and delivered by the
Trustee, the valid obligations of the Issuer, have been performed and
fulfilled, and the execution and delivery hereof have been in all respects
duly authorized;
NOW THEREFORE, in consideration of the purchase and acceptance of the
Prepaid Securities by the holders thereof upon early settlement of the PERCS
Units, and for the purpose of setting forth, as provided in the Indenture, the
form and substance of the Prepaid Securities and the terms, provisions and
conditions thereof, the Issuer covenants and agrees with the Trustee as
follows:
ARTICLE ONE
Definitions
SECTION 1.01. Capitalized terms used and not otherwise defined in
this First Supplemental Indenture shall have the meanings ascribed to them in
the Indenture. In addition, the following terms shall have the respective
meanings specified in this Section.
"Acceleration" means either an Issuer Redemption or a Mandatory
Conversion.
"Acceleration Date" means either an Issuer Redemption Date or a
Mandatory Conversion Date.
"Amount in Respect of Contract Fees" means the amount payable by the
Issuer on each Payment Date in respect of each Prepaid Security, equal to 1.0%
per annum of the Stated Amount, computed on the basis of the actual number of
days elapsed in a year of 365 or 366 days, as the case may be, except that
Contract Fees payable on the first Payment Date pursuant to the Purchase
Contract Agreement will be adjusted so that Contract Fees payable on such date
will be $.122243 per Prepaid Security. Expect as otherwise stated herein,
Amounts in Respect of Contract Fees shall be considered to be interest for all
purposes under the Indenture.
"Authorized Newspaper" has the meaning provided in the Purchase
Contract Agreement.
"Business Day" has the meaning provided in the Purchase Contract
Agreement.
"Closing Price" has the meaning provided in the Purchase Contract
Agreement.
"Common Stock" has the meaning provided in the Purchase Contract
Agreement.
"Company Acceleration" means a Company Acceleration of the PERCS
Units as provided in the Purchase Contract Agreement.
"Contract Fees" means the Contract Fees payable with respect to the
PERCS Units as provided in the Purchase Contract Agreement.
"Current Market Price" has the meaning provided in the Purchase
Contract Agreement.
"Deferred Amounts in Respect of Contract Fees" has the meaning
provided in Section 3.02.
"Deferred Contract Fees" means the Deferred Contract Fees payable
with respect to the PERCS Units as provided in the Purchase Contract Agreement.
"Final Settlement Date" has the meaning provided in the Purchase
Contract Agreement.
"Final Settlement Fund" has the meaning provided in Section 4.01.
"Holder" means, for purposes of this First Supplemental Indenture, a
Holder (as such term is defined in the Indenture) of a Prepaid Security.
"Holder's Early Settlement" has the meaning provided in the Purchase
Contract Agreement.
"Issuer Redemption" has the meaning provided in Section 4.02.
"Issuer Redemption Date" has the meaning provided in Section 4.02.
"Issuer Redemption Price" means the per share price (payable in
shares of Common Stock) at which the Issuer may accelerate the settlement of
the Securities, which initially shall be $59.289, declining by $.008060 on
each day following November 6, 1996 (computed on the basis of a 360-day year
of twelve 30-day months) to $51.1081 on August 31, 1999 and equal to $50.625
thereafter.
"Issuer Redemption Settlement Fund" has the meaning provided in
Section 4.02.
"Mandatory Conversion" has the meaning provided in Section 4.03.
"Mandatory Conversion Date" has the meaning provided in Section 4.03.
"Mandatory Conversion Settlement Fund" has the meaning provided in
Section 4.03.
"Merger or Consolidation" has the meaning provided in the Purchase
Contract Agreement.
"Notice Date" means, with respect to any notice given by the Issuer
in connection with an Acceleration, the earlier of (i) the commencement of the
mailing of such notice to Holders and (ii) the date such notice is first
published in accordance with Section 4.05.
"NYSE" means the New York Stock Exchange.
"Outstanding Securities" has the meaning provided in the Purchaser
Contract Agreement.
"Payment Date" has the meaning provided in the Purchase Contract
Agreement and is subject to the provisions of Article I of the Purchase
Contract Agreement.
"PERCS Units" has the meaning stated in the recitals of this First
Supplemental Indenture.
"Prepaid Security" has the meaning stated in the recitals of this
First Supplemental Indenture.
"Purchase Contract" has the meaning provided in the Purchase Contract
Agreement.
"Purchase Contract Agreement" has the meaning stated in the recitals
of this First Supplemental Indenture.
"Record Date" has the meaning provided in the Purchase Contract
Agreement.
"Sale of Assets" has the meaning provided in the Purchase Contract
Agreement.
"Sale of Assets Date" has the meaning provided in the Purchase
Contract Agreement.
"Security Register" has the meaning provided in the Purchase Contract
Agreement.
"Settlement Rate" shall be initially one share of Common Stock,
subject to adjustment as provided in the Purchase Contract Agreement.
"Stated Amount" means $37.50 per Prepaid Security. Except as
otherwise stated herein, the Stated Amount of any Prepaid Security shall be
considered to be the principal amount of such Security for all purposes under
the Indenture.
ARTICLE TWO
General Terms and Conditions; Form of
Prepaid Securities
SECTION 2.01. There shall be and is hereby authorized a series
of Securities designated the "Prepaid Premium Equity Redeemable Cumulative
Securities", limited in aggregate Stated Amount to $431,250,000. The Prepaid
Securities shall be issued in the form of registered Securities without
Coupons. The Prepaid Securities shall be issued in certificated form in
denominations equal to the Stated Amount and integral multiples thereof.
SECTION 2.02. The Prepaid Securities and the Trustee's
certificate of authentication shall be in substantially the form of Exhibit A,
which is a part of this First Supplemental Indenture.
ARTICLE THREE
Amounts in Respect of Contract Fees
SECTION 3.01. Subject to Section 3.02, the Issuer shall pay by
12:00 noon New York City time to the Trustee, on each Payment Date, in respect
of each Prepaid Security, beginning with the first Payment Date following the
issuance of such Prepaid Security (unless such Prepaid Security was issued
subsequent to a Record Date but prior to the next succeeding Payment Date, in
which event, beginning with the second Payment Date following the issuance of
such Prepaid Security), an amount equal to the Amount in Respect of Contract
Fees payable to the Person in whose name such Prepaid Security appears on the
Security Register at the close of business on the Record Date next preceding
such Payment Date. The Amounts in Respect of Contract Fees will be payable
at the office of the Trustee in the City of New York, at the option of the
Issuer, by check mailed to the address of the Person entitled thereto as such
address appears on the Security Register.
If an Acceleration Date, a Sale of Assets Date or a date upon
which an Event of Default occurs after any Record Date and on or prior to the
next succeeding Payment Date (an "Interim Period"), Contract Fees otherwise
payable on such Payment Date shall be payable on such Payment Date
notwithstanding the occurrence of such event, and such Amounts in Respect of
Contract Fees shall be paid to the Person in whose name appears on the
Security Register at the close of business on such Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the
case of any Prepaid Security with respect to which settlement is effected on a
date other than during an Interim Period, Amounts in Respect of Contract Fees
that would otherwise be payable on such date other than a date during an
Interim Period with respect to the Prepaid Security shall not be payable.
SECTION 3.02. The Issuer shall have the right, at any time
prior to the Final Settlement Date, an earlier Acceleration Date applicable to
a Holder's Securities or a Sale of Assets Date, to defer the payment of any or
all of the Amounts in Respect of Contract Fees otherwise payable on any
Payment Date (on a pro rata basis among all Outstanding Securities including
Prepaid Securities), but only if the Issuer shall give the Holders and the
Trustee written notice of its election to defer such payment (specifying the
amount to be deferred and the period of deferment) at least ten Business Days
prior to the earlier of the next succeeding Payment Date or the date the
Issuer is required to give notice of the Record Date or Payment Date with
respect to payment of such Amounts in Respect of Contract Fees to the NYSE or
other applicable self-regulatory organization or to Holders of the PERCS
Units, but in any event not less than two Business Days prior to the Record
Date. Any Amounts in Respect of Contract Fees so deferred shall bear
additional Amounts in Respect of Contract Fees thereon at the rate of 1.0% per
annum (computed on the basis of the actual number of days elapsed in a year of
365 or 366 days, as the case may be), compounding on each succeeding Payment
Date, until paid in full (such deferred installments of Amounts in Respect of
Contract Fees together with the additional Amounts in Respect of Contract Fees
accrued thereon, are referred to herein as "Deferred Amounts in Respect of
Contract Fees"). Deferred Amounts in Respect of Contract Fees shall be due on
the next succeeding Payment Date, except to the extent that payment is
deferred further in the notice of election pursuant to this Section. The
Issuer may pay Deferred Amounts in Respect of Contract Fees in whole or in
part on any Payment Date (on a pro rata basis among all Outstanding
Securities including Prepaid Securities). No Amounts in Respect of
Contract Fees or Deferred Amounts in Respect of Contract Fees may be
deferred to a date that is after the Final Settlement Date, or a Sale of
Assets Date or, with respect to any particular Prepaid Securities, the
Acceleration thereof. In the event the Issuer elects to defer the payment
of Amounts in Respect of Contract Fees until the Final Settlement Date, a
Sale of Assets Date, a Issuer Redemption Date or a Mandatory Conversion
Date (or a date prior to such dates as set forth in its written notice
referred to in the preceding paragraph) the Issuer shall make a cash
payment, on the date such Amount in Respect of Deferred Contract Fees
becomes due and payable, equal to the aggregate Amount in Respect of
Deferred Contract Fees payable to a Holder.
In the event the Issuer exercises its option to defer the
payment of Amounts in Respect of Contract Fees, then, until the Deferred
Amounts in Respect of Contract Fees have been paid in full, the Issuer shall
not declare or pay dividends on, make distributions with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to,
any of its capital stock (other than (i) purchase or acquisitions of shares of
Common Stock in connection with the satisfaction by the Issuer of its
obligations under any employee benefit plans now or hereafter in effect or the
satisfaction by the Issuer of its obligations pursuant to any contract or
security requiring the Issuer to purchase shares of Common Stock, (ii) as a
result of a reclassification of the Issuer's capital stock or the exchange or
conversion of one class or series of the Issuer's capital stock for another
class or series of the Issuer's capital stock, (iii) the purchase of
fractional shares in shares of the Issuer's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (iv) the payment of accrued dividends (and cash in
lieu of fractional shares) upon the conversion of any shares of preferred
stock of the Issuer as may be outstanding from time to time, in accordance
with the terms of such stock or (v) dividends on its capital stock paid in
shares of capital stock) or make any guarantee payments with respect to the
foregoing.
The Prepaid Securities and the obligations and rights of the
Issuer and the Holders thereunder, including, without limitation, the rights
of the Holders to receive and the obligation of the Issuer to pay any Amounts
in Respect of Contract Fees or any Deferred Amounts in Respect of Contract
Fees, shall immediately and automatically terminate, without the necessity of
any notice or action by any Holder, the Agent or the Issuer, if, on or prior
to the Final Settlement Date or an earlier Acceleration Date with respect to
any particular Prepaid Securities, an Event of Default or Sale of Assets shall
have occurred; provided that, in the event of a Sale of Assets, the Issuer
will pay all accrued and unpaid Amounts in Respect of Contract Fees and
Amounts in Respect of Deferred Contract Fees, if any, to Holders on the tenth
Business Day following the Sale of Assets Date. Upon the occurrence of an
Event of Default or Sale of Assets, the Issuer shall promptly but in no event
after two Business Days thereafter give written notice to the Trustee and to
the Holders, at their addresses as they appear in the Security Register.
Notwithstanding the foregoing, the Issuer may defer payments of
Amounts in Respect of Contract Fees only if, and to the extent that, it has
also deferred Contract Fees on the PERCS Units.
SECTION 3.03. In addition to the Amounts in Respect of
Contract Fees and Deferred Amounts in Respect of Contract Fees referred to in
Sections 3.01 and 3.02, each Prepaid Security shall entitle the Holder thereof
to Amounts in Respect of Contract Fees and Deferred Amounts in Respect of
Contract Fees in amounts equal to the amounts of accrued and unpaid Contract
Fees and Deferred Contract Fees, respectively, with respect to the PERCS Units
at the time such Prepaid Security was issued, and any Deferred Contract Fees
to which a Holder is entitled pursuant to this Section 3.03 shall bear
additional Amounts in Respect of Contract Fees from the date of issuance of
such Prepaid Security as provided in Section 3.02.
ARTICLE FOUR
Issuance of Common Stock; Acceleration;
Repayment Upon a Sale of Assets
SECTION 4.01. Unless an Event of Default, Sale of Assets shall
have occurred on or prior to the Final Settlement Date or an earlier
Acceleration Date, on the Final Settlement Date or an earlier Acceleration
Date, the Issuer shall issue and deposit with the Trustee, for the benefit of
the Holders, one or more certificates representing a number of shares of
Common Stock, registered in the name of the Trustee (or its nominee) as
custodian for the Holders (such certificates for shares of Common Stock,
together with any dividends or distributions with respect thereto, being
hereinafter referred to as the "Final Settlement Fund"), equal to the
Settlement Rate in effect on the Final Settlement Date.
SECTION 4.02. Prior to a Mandatory Conversion Date, a date
upon which Event of Default occurs, Sale of Assets Date or to the Final
Settlement Date, the Issuer shall have the right at any time and from time to
time to redeem, in whole or in part, the outstanding Prepaid Securities (an
"Issuer Redemption") (subject to the notice provisions set forth in Section
4.05). The Issuer may not exercise its right to accelerate the Securities
unless the Current Market Price determined as of the second Business Day
immediately preceding the Notice Date is equal to or exceeds the Issuer
Redemption Price applicable to such Notice Date. Upon the effective date of
an Issuer Redemption (an "Issuer Redemption Date"), the Issuer shall issue and
deposit with the Trustee, for the benefit of the Holders of Prepaid Securities
so redeemed, (i) one or more certificates representing a number of fully paid
and non-assessable shares of Common Stock, registered in the name of the
Trustee (or its nominee) as custodian for such Holders (such certificates for
shares of Common Stock, together with any dividends or distributions with
respect thereto, being hereinafter referred to as the "Issuer Redemption
Settlement Fund"), determined by dividing the Issuer Redemption Price in
effect on Issuer Redemption Date by the Current Market Price of the Common
Stock determined as of the second Business Day immediately preceding the
Notice Date applicable to such Issuer Redemption Date and (ii) an amount in
cash equal to all accrued and unpaid Amounts in Respect of Contract Fees and
Deferred Amounts in Respect of Contract Fees, if any, on such Prepaid
Securities to and including such Issuer Redemption Date (and Amounts in
Respect of Contract Fees and Deferred Amounts in Respect of Contract Fees, if
any, shall cease to accrue on each Prepaid Security redeemed as of such date).
The Issuer shall redeem the Prepaid Securities in whole if it
effects a Company Acceleration of the PERCS Units in whole. If fewer than all
Outstanding Securities (including the Prepaid Securities) are to be redeemed,
the Prepaid Securities to be redeemed shall be selected by the Trustee by lot.
SECTION 4.03. Immediately prior to the effectiveness of a
Merger or Consolidation, each outstanding Prepaid Security shall automatically
convert into (a "Mandatory Conversion"), unless sooner redeemed, the right to
receive, and the Issuer shall issue and deposit with the Trustee, for the
benefit of the Holders, (i) one or more certificates representing a number of
fully paid and non-assessable shares of Common Stock, registered in the name
of the Trustee (or its nominee) as custodian for the Holders (such
certificates for shares of Common Stock, together with any dividends or
distributions with respect thereto, being hereinafter referred to as the
"Mandatory Conversion Settlement Fund"), equal to the Settlement Rate in
effect on the Mandatory Conversion Date, (ii) an amount in cash equal to all
accrued and unpaid Amounts in Respect of Contract Fees and Deferred Amounts in
Respect of Contract Fees, if any, on such Prepaid Security to but excluding
the Mandatory Conversion Date (and Amounts in Respect of Contract Fees shall
cease to accrue as of the Mandatory Conversion Date) and (iii) an amount in
cash (except as provided in herein) initially equal to $8.664 declining by
$.008060 on each day following November 6, 1996 (computed on the basis of a
360-day year of twelve 30-day months) to $.4831 on August 31, 1999 and equal
to zero thereafter, in each case determined with reference to the Mandatory
Conversion Date.
At the option of the Issuer and provided the Issuer has
sufficient authorized and reserved shares of Common Stock, it may deliver to
the Agent, for the benefit of the Holders, on the Mandatory Conversion Date,
for the benefit of the Holders, in lieu of some or all the cash payment
referred to in clause (iii) of the preceding paragraph, a number of shares of
Common Stock (in addition to the shares of Common Stock referred to in clause
(i) of the preceding paragraph) equal to (x) the amount of such cash payment
that the Issuer has elected to pay in Common Stock divided by (y) the Current
Market Price of the Common Stock determined as of the second Business Day
immediately preceding the Notice Date applicable to such Mandatory Conversion
Date. No fractional shares of Common Stock will be issued by the Issuer with
respect to the payment of such amounts pursuant to clause (iii) above. In
lieu of fractional shares otherwise issuable with respect to such payment of
such premium, Holders will be entitled to receive an amount in cash as
provided in Section 4.07.
SECTION 4.04. Upon a Sale of Assets, each Prepaid Security
shall automatically convert into the right to receive, and the Issuer shall
issue and deposit with the Trustee, for the benefit of the Holders, an amount
in cash equal to the sum of (i) the Stated Amount and (ii) all accrued and
unpaid Amounts in Respect of Contract Fees and Deferred Amounts in Respect of
Contract Fees, if any, as provided in Section 3.02.
SECTION 4.05. The Issuer will provide notice of the Final
Settlement Date or any earlier Acceleration (including any potential
acceleration upon the effectiveness of a Merger or Consolidation) to the
Trustee and Holders of record of the Prepaid Securities to be accelerated not
less than 30 nor more than 60 days prior to the Final Settlement Date or the
date fixed for such Acceleration; provided, however, that if the effectiveness
of a Merger or Consolidation makes it impracticable to provide at least 30
days' notice, the Issuer shall provide such notice as soon as practicable
prior to such effectiveness. Such notice shall be provided by mailing notice
of the Final Settlement Date or any earlier Acceleration first class postage
prepaid, to each Holder of record of the Prepaid Securities subject to such
Acceleration, at such Holder's address as it appears on the Security Register
of the Issuer, and by publishing notice thereof in The Wall Street Journal or
The New York Times or, if neither such newspaper is then being published, any
other Authorized Newspaper. Each such mailed or published notice shall state,
as appropriate, the following:
(1) the Final Settlement Date or an Acceleration Date;
(2) the number of Prepaid Securities to be accelerated and,
if less than all the Prepaid Securities held by any Holder are
subject to such Acceleration, the number of such Prepaid
Securities subject to such Acceleration;
(3) the Settlement Rate or the Issuer Redemption Price, as
applicable, and, if applicable, the Current Market Price to be
used to calculate the number of shares of Common Stock
deliverable upon such Acceleration;
(4) whether the Issuer is exercising any option to deliver
shares of Common Stock in lieu of any cash (in the case of a
Mandatory Conversion) and the Current Market Price to be used
to calculate the number of such shares of Common Stock;
(5) the place or places where certificates for such Prepaid
Securities are to be surrendered for Acceleration;
(6) whether the Issuer is depositing with a bank or a trust
company on or before an Acceleration Date, the shares of Common
Stock, and cash, if any, payable by the Issuer and the proposed
date of such deposit; and
(7) the amount of accrued and unpaid Amounts in Respect of
Contract Fees (and Deferred Amounts in Respect of Contract
Fees, if any) payable per Prepaid Security subject to such
Acceleration, and that Amounts in Respect of Contract Fees on
Prepaid Securities subject to such Acceleration will cease to
accrue on such Acceleration Date.
SECTION 4.06. Upon surrender of a certificate representing a
Prepaid Security to the Trustee on or after the Final Settlement Date, an
earlier Acceleration Date or the date ten Business Days following a Sale of
Assets Date, together with settlement instructions thereon duly completed and
executed, the Holder of such Prepaid Security shall be entitled to receive in
exchange therefor (i) a certificate representing that number of whole shares
of Common Stock that such Holder is entitled to receive pursuant to the
provisions of this Article Four (after taking into account all Prepaid
Securities then held by such Holder) together with cash in lieu of fractional
shares as provided in Section 4.07 and any dividends or distributions with
respect to such shares constituting part of the Final Settlement Fund, the
Issuer Redemption Settlement Fund or the Mandatory Conversion Settlement Fund,
as applicable, but without any interest thereon, and (ii) any cash to which
such Holder is entitled pursuant to this Article Four, and the Prepaid
Certificate so surrendered shall forthwith be canceled. In the case of an
Acceleration of fewer than all the Prepaid Securities, a certificate shall be
issued at the expense of the Issuer representing the Prepaid Securities not
subject to such Acceleration.
Shares of Common Stock so delivered shall be registered in the
name of the Holder or the Holder's designee as specified in the settlement
instructions on the certificate for such Prepaid Security. If any shares of
Common Stock issued in respect of a Prepaid Security are to be registered to a
Person other than the Person in whose name the certificate evidencing such
Prepaid Security is registered, no such registration shall be made unless the
Person requesting such registration has paid any transfer and other taxes
required by reason of such registration in a name other than that of the
registered Holder of the certificate evidencing such Prepaid Security or has
established to the satisfaction of the Issuer that such tax either has been
paid or is not payable.
SECTION 4.07. No fractional shares or scrip representing
fractional shares of Common Stock shall be issued or delivered on the Final
Settlement Date or earlier Acceleration upon settlement of any Prepaid
Securities or with respect to the payment of amounts in shares of Common Stock
pursuant to clause (iii) of Section 4.03 on a Mandatory Conversion (if the
Issuer elects to pay such amounts in shares of Common Stock in lieu of cash).
If certificates evidencing more than one Prepaid Security shall be surrendered
for settlement at one time by the same Holder, the number of full shares of
Common Stock that shall be delivered upon settlement shall be computed on the
basis of the aggregate number of Prepaid Securities evidenced by the
certificates so surrendered. Instead of any fractional share of Common Stock
that would otherwise be deliverable upon settlement of any Prepaid Securities
on the Final Settlement Date or an earlier Acceleration Date or with respect
to the payment of any amounts in shares of Common Stock pursuant to clause
(iii) of Section 4.03 on a Mandatory Conversion (if the Issuer elects to pay
such amounts in shares of Common Stock in lieu of cash) the Issuer, through
the Trustee, shall make a cash payment in respect of such fractional interest
in an amount equal to the value of such fractional shares at the Current
Market Price of the Common Stock determined as of the second Business Day
immediately preceding the relevant Notice Date or Final Settlement Date, as
applicable. The Issuer shall provide the Trustee from time to time with
sufficient funds to permit the Trustee to make all cash payments required by
this Section 4.07 in a timely manner.
SECTION 4.08. The Settlement Rate shall be subject to
adjustment from time to time in a manner identical to that set forth in
Section 5.06 of the Purchase Contract Agreement.
Whenever the Settlement Rate is adjusted as herein provided,
the Issuer shall:
(i) forthwith compute the adjusted Settlement Rate in
accordance with Section 5.06 of the Purchase Contract Agreement and
prepare a certificate signed by the Chief Executive Officer, the
Chairman, the President, any Vice President or the Treasurer of the
Issuer setting forth the adjusted Settlement Rate, the method of
calculation thereof in reasonable detail and the facts requiring such
adjustment and upon which such adjustment is based, and file such
certificate forthwith with Agent for the Prepaid Securities and the
transfer agent or agents for the Common Stock; and
(ii) mail a notice stating that the Settlement Rate has been
adjusted, the facts requiring such adjustment and upon which such
adjustment is based and setting forth the adjusted Settlement Rate to
the Trustee and the Holders of record of the outstanding Prepaid
Securities at or prior to the time the Issuer mails an interim
statement to its stockholders covering the quarter-yearly period
during which the facts requiring such adjustment occurred, but in any
event within 45 days of the end of such quarter-yearly period.
The Trustee shall not at any time be under any duty or
responsibility to any Holder to determine whether any facts exist which may
require any adjustment of the Settlement Rate, or with respect to the nature
or extent or calculation of any such adjustment when made, or with respect to
the method employed in making the same. The Trustee shall not be accountable
with respect to the validity or value (or the kind or amount) of any shares
of Common Stock, or of any securities or property, which may at the time be
issued or delivered with respect to any Prepaid Security; and the Trustee
makes no representation with respect thereto. The Trustee shall not be
responsible for any failure of the Issuer to issue, transfer or deliver any
shares of Common Stock pursuant to a Prepaid Security or to comply with any of
the duties, responsibilities or covenants of the Issuer contained in this
Article.
ARTICLE FIVE
Covenants
SECTION 5.01. The Issuer shall at all times prior to the Final
Settlement Date, an earlier Acceleration Date or a Sale of Assets Date reserve
and keep available, free from preemptive rights, out of its authorized but
unissued Common Stock the full number of shares of Common Stock issuable (x)
on the Final Settlement Date pursuant to Section 4.01 and (y) in payment of
amounts in shares of Common Stock pursuant to clause (iii) of Section 4.03 on
a Mandatory Conversion (if the Issuer elects to pay such amounts in shares of
Common Stock in lieu of cash) or the Issuer Redemption Price.
SECTION 5.02. The Issuer covenants that all shares of Common
Stock that may be issued (x) on the Final Settlement Date pursuant to Section
4.01 and (y) in payment of amounts in shares of Common Stock pursuant to
clause (iii) of Section 4.03 on a Mandatory Conversion (if the Issuer elects
to pay such amounts in shares of Common Stock in lieu of cash) or the Issuer
Redemption Price will, upon issuance, be duly authorized, validly issued,
fully paid and nonassessable.
SECTION 5.03. Notwithstanding anything to the contrary in the
Indenture, the provisions of Article 9 of the Indenture shall not apply to the
Prepaid Securities.
ARTICLE SIX
Events of Default
SECTION 6.01. The provision of Article Five of the Indenture
shall, except as provided in this First Supplemental Indenture, apply to the
Prepaid Securities. If an Event of Default shall have occurred and be
continuing, the Prepaid Securities shall be accelerated so that the Issuer
shall become immediately obligated to make the deliveries of Common Stock that
the Issuer would be obligated to make if the date of such acceleration were
the Final Settlement Date. Any obligations of the Issuer with respect to
accrued and unpaid Amounts in Respect of Contract Fees and Deferred Amounts in
Respect of Contract Fees shall be extinguished and of no further effect upon
an Event of Default, and in no event shall the Issuer be obligated to pay any
amounts in respect of accrued and unpaid Amounts in Respect of Contract Fees
or Deferred Amounts in Respect of Contract Fees, if any, upon an Event of
Default.
ARTICLE SEVEN
Issuance of Prepaid Securities
SECTION 7.01. Upon settlement of PERCS Units prior to the
Final Settlement Date as provided in Section 5.10 of the Purchase Contract
Agreement, Prepaid Securities in Stated Amount equal to the Stated Amount of
the PERCS Units so settled may, upon execution of this First Supplemental
Indenture, be executed by the Issuer and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Prepaid Securities to or upon an Issuer Order, without any further action by
the Issuer.
ARTICLE EIGHT
Miscellaneous Provisions
SECTION 8.01. The Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed, and this
First Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided.
SECTION 8.02. Notwithstanding Section 5.03, all covenants and
agreements of the Issuer with respect to the Prepaid Securities set forth in
this First Supplemental Indenture or the Indenture shall bind the successors
and assigns of the Issuer, whether so expressed or not.
SECTION 8.03. The recitals herein contained are made by the
Issuer and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this First Supplemental Indenture.
SECTION 8.04. Notwithstanding anything to the contrary in the
Indenture or the Purchase Contract Agreement, upon the election of a Holder's
Early Settlement pursuant to the Purchase Contract Agreement or earlier, the
Issuer may amend the provisions of this First Supplemental Indenture in order
to make the terms of this First Supplemental Indenture substantially similar
to the terms of the Purchase Contract Agreement and the Purchase Contract
without the consent of the holders of such Purchase Contracts or such holders
who have elected a Holder's Early Settlement pursuant to the Purchase Contract
Agreement.
SECTION 8.05. This First Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York without regard to conflicts of law.
SECTION 8.06. This First Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
SUNAMERICA INC.
By: _____________________________
Name:
Title:
Attested:
By: _____________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: _____________________________
Name:
Title:
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES ) November 6, 1996
On the day of , in the year one thousand
nine hundred ninety-six, before me personally came
to me known, who, being by me duly sworn, did depose and say
that he resides at ; that he is
of SUNAMERICA INC., one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to the said
instrument is such corporation seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
_____________________________
NOTARY PUBLIC
My Commission Expires
EXHIBIT A
SUNAMERICA INC.
PREPAID PREMIUM EQUITY REDEMPTION
CUMULATIVE SECURITY UNITS
(STATED AMOUNT $37.50 PER SECURITY)
No.
CUSIP No. 866930852
This Security Certificate certifies that is the
registered Holder of the number of Securities of SunAmerica Inc., a Maryland
corporation (the "Issuer") set forth above. Each Security represents a
principal amount equal to the Stated Amount of $37.50.
Each Prepaid Security evidenced hereby obligates the Holder of
this Security Certificate to purchase, and the Issuer to sell, on October 31,
1999 (the "Final Settlement Date"), at a price equal to $37.50 (the "Stated
Amount"), a number of shares of Common Stock, par value $1.00 per share
("Common Stock"), of the Issuer, equal to the Settlement Rate on the Final
Settlement Date, unless on or prior to the Final Settlement Date, there shall
have occurred a Bankruptcy Event, Sales of Assets, or an earlier Acceleration
with respect to the Prepaid Security. The purchase price for the shares of
Common Stock have been be paid in full.
The Issuer shall pay or accrue, on each Payment Date, in
respect of each Prepaid Security evidenced hereby an amount (the "Amounts in
Respect of Contract Fees") equal to 1.0% per annum of the Stated Amount,
computed on the basis of the actual number of days elapsed in a year of 365 or
366 days, as the case may be, subject to deferral at the option of the Issuer
as provided in First Supplemental Indenture and more fully described on the
reverse hereof; except that the Amounts in Respect of Contract Fees payable on
the first Payment Date will be adjusted so that the Amounts in Respect of
Contract Fees payable on such date will be $.122243 per Security. Such
Amounts in Respect of Contract Fees shall be payable to the Person in whose
name appears on the Security Register at the close of business on the Record
Date next preceding such Payment Date.
The Amounts in Respect of Contract Fees will be payable at the
office of the Trustee in The City of New York or, at the option of the Issuer,
by check mailed to the address of the Person entitled thereto as such address
appears on the Security Register.
Reference is hereby made to the further provisions set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee by manual signature, this Security
Certificate shall not be entitled to any benefits under the Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed.
Dated:_________________________
SUNAMERICA INC.
By: _________________________
Name:
Title:
Attested:
By:_________________________
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Prepaid Securities described in the within-mentioned
Indenture.
Dated:
The Bank of New York,
as Trustee
_________________________
or as Authentication Agent
By: _________________________
Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Prepaid Security is one of a duly authorized series of Prepaid
Securities of the Issuer (herein sometimes referred to as the "Prepaid
Securities"), specified in the Indenture, all issued or to be issued in one or
more series under and pursuant to an Indenture dated as of November 1, 1996
duly executed and delivered between the Issuer and The Bank of New York, a New
York banking corporation, as Trustee (herein referred to as the "Trustee"), as
supplemented by the First Supplemental Indenture dated as of November 6, 1996
between the Issuer and the Trustee (said Indenture as so supplemented being
hereinafter referred to as the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer and the holders of the Prepaid
Securities, and, to the extent specifically set forth in the Indenture.
Unless an Event of Default, Sale of Assets shall have occurred on or
prior to the Final Settlement Date or an earlier Acceleration Date, on the
Final Settlement Date or an earlier Acceleration Date, the Issuer shall issue
and deposit with the Trustee, for the benefit of the Holders, one or more
certificates representing a number of shares of Common Stock, registered in
the name of the Trustee (or its nominee) as custodian for the Holders (such
certificates for shares of Common Stock, together with any dividends or
distributions with respect thereto, being hereinafter referred to as the
"Final Settlement Fund"), equal to the Settlement Rate in effect on the Final
Settlement Date. The "Settlement Rate" is initially one share of Common
Stock, in each case subject to adjustment as provided in the Indenture.
Notice will be provided to the Holder upon an adjustment of the Settlement
Rate as provided in the Indenture. No fractional shares of Common Stock will
be issued upon settlement of this Prepaid Security, as provided in the
Indenture.
The Issuer shall pay by 12:00 noon New York City time to the
Trustee, on each Payment Date, in respect of each Prepaid Security, beginning
with the first Payment Date following the issuance of such Prepaid Security
(unless such Prepaid Security was issued subsequent to a Record Date but prior
to the next succeeding Payment Date, in which event, beginning with the second
Payment Date following the issuance of such Prepaid Security), an amount equal
to the Amount in Respect of Contract Fees payable to the Person in whose name
such Prepaid Security appears on the Security Register at the close of
business on the Record Date next preceding such Payment Date. The Amounts in
Respect of Contract Fees will be payable at the office of the Trustee in The
City of New York or, at the option of the Issuer, by check mailed to the
address of the Person entitled thereto at such address as it appears on the
Security Register.
The Issuer shall have the right, at any time prior to the Final
Settlement Date, an earlier Acceleration Date or a Sale of Assets Date, to
defer the payment of any or all of the Amounts in Respect of Contract Fees
otherwise payable on any Payment Date (on a pro rata basis among all
Outstanding Securities including Prepaid Securities), but only if the Issuer
shall give the Holders and the Trustee written notice of its election to defer
such payment (specifying the amount to be deferred and the period of
deferment) at least ten Business Days prior to the earlier of the next
succeeding Payment Date or the date the Issuer is required to give notice of
the Record Date or Payment Date with respect to payment of such Amounts in
Respect of Contract Fees to the NYSE or other applicable self-regulatory
organization or to Holders (as defined in the Purchase Contract Agreement) of
the PERCS Units, but in any event not less than two Business Days prior to the
Record Date. Any Amounts in Respect of Contract Fees so deferred shall bear
additional Amounts in Respect of Contract Fees thereon at the rate of 1.0% per
annum (computed on the basis of the actual number of days elapsed in a year of
365 or 366 days, as the case may be), compounding on each succeeding Payment
Date, until paid in full (such deferred installments of Amounts in Respect of
Contract Fees together with the additional Amounts in Respect of Contract Fees
accrued thereon, are referred to herein as "Deferred Amounts in Respect of
Contract Fees"). Deferred Amounts in Respect of Contract Fees shall be due on
the next succeeding Payment Date, except to the extent that payment is
deferred further in the notice of election pursuant to this paragraph. The
Issuer may pay Deferred Amounts in Respect of Contract Fees in whole or in
part on any Payment Date (on a pro rata basis among all Outstanding Securities
including Prepaid Securities). No Amounts in Respect of Contract Fees or
Deferred Amounts in Respect of Contract Fees may be deferred to a date that is
after the Final Settlement Date, or a Sale of Assets Date or, with respect to
any particular Prepaid Securities, the Acceleration thereof. In the event the
Issuer elects to defer the payment of Amounts in Respect of Contract Fees
until the Final Settlement Date, a Sale of Assets Date, an Issuer Redemption
Acceleration Date or a Mandatory Conversion Date (or a date prior to such
dates as set forth in its written notice referred to in this paragraph) the
Issuer shall make a cash payment, on the date such Amount in Respect of
Deferred Contract Fees becomes due and payable, equal to the aggregate Amount
in Respect of Deferred Contract Fees payable to a Holder.
In the event the Issuer exercises its option to defer the
payment of Amounts in Respect of Contract Fees, then, until the Deferred
Amounts in Respect of Contract Fees have been paid in full, the Issuer shall
not declare or pay dividends on, make distributions with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to,
any of its capital stock (other than (i) purchase or acquisitions of shares of
Common Stock in connection with the satisfaction by the Issuer of its
obligations under any employee benefit plans now or hereafter in effect or the
satisfaction by the Issuer of its obligations pursuant to any contract or
security requiring the Issuer to purchase shares of Common Stock, (ii) as a
result of a reclassification of the Issuer's capital stock or the exchange or
conversion of one class or series of the Issuer's capital stock for another
class or series of the Issuer's capital stock, (iii) the purchase of
fractional shares in shares of the Issuer's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (iv) the payment of accrued dividends (and cash in
lieu of fractional shares) upon the conversion of any shares of preferred
stock of the Issuer as may be outstanding from time to time, in accordance
with the terms of such stock or (v) dividends on its capital stock paid in
shares of capital stock) or make any guarantee payments with respect to the
foregoing.
This Prepaid Security and the obligations and rights of the
Issuer and the Holder hereof, including, without limitation, the rights of the
Holder to receive and the obligation of the Issuer to pay any Amounts in
Respect of Contract Fees or any Deferred Amounts in Respect of Contract Fees,
shall immediately and automatically terminate, without the necessity of any
notice or action by the Holder, the Agent or the Issuer, if, on or prior to
the Final Settlement Date or an earlier Acceleration Date with respect to any
particular Prepaid Securities, an Event of Default or Sale of Assets shall
have occurred; provided that, in the event of a Sale of Assets, the Issuer
will pay all accrued and unpaid Amounts in Respect of Contract Fees and
Amounts in Respect of Deferred Contract Fees, if any, to the Holder on the
tenth Business Day following the Sale of Assets Date. Upon the occurrence of
an Event of Default or Sale of Assets, the Issuer shall promptly but in no
event after two Business Days thereafter give written notice to the Trustee
and to the Holder, at its address as it appears in the Security Register.
Notwithstanding the foregoing, the Issuer may defer payments of
Amounts in Respect of Contract Fees only if, and to the extent that, it has
also deferred Contract Fees on the PERCS Units.
Prior to a Mandatory Conversion Date, a date upon which an
Event of Default occurs, Sale of Assets Date or the Final Settlement Date, the
Issuer shall have the right at any time and time to time to redeem, in whole
or in part, the outstanding Prepaid Securities (an "Issuer Redemption")
(subject to the notice provisions set forth in the Indenture). The Issuer may
not exercise its right to accelerate the Securities unless the Current Market
Price determined as of the second Business Day immediately preceding the
Notice Date is equal to or exceeds the Issuer Redemption Price applicable to
such Notice Date. Upon the effective date of an Issuer Redemption (an "Issuer
Redemption Date"), the Issuer shall issue and deposit with the Trustee, for
the benefit of the Holders of Prepaid Securities so redeemed, (i) one or more
certificates representing a number of fully paid and non-assessable shares of
Common Stock, registered in the name of the Trustee (or its nominee) as
custodian for such Holders (such certificates for shares of Common Stock,
together with any dividends or distributions with respect thereto, being
hereinafter referred to as the "Issuer Redemption Settlement Fund"),
determined by dividing the Issuer Redemption Price in effect on the Issuer
Redemption Date by the Current Market Price of the Common Stock determined as
of the second Business Day immediately preceding the Notice Date applicable to
such Issuer Redemption Date and (ii) an amount in cash equal to all accrued
and unpaid Amounts in Respect of Contract Fees and Deferred Amounts in Respect
of Contract Fees, if any, on such Prepaid Securities to and including such
Issuer Redemption Date (and Amounts in Respect of Contract Fees and Deferred
Amounts in Respect of Contract Fees, if any, shall cease to accrue on each
Prepaid Security redeemed as of such date).
The Issuer shall redeem the Prepaid Securities in whole if it
effects a Company Acceleration of the PERCS Units in whole. If fewer than all
Outstanding Securities (including Prepaid Securities) are to be redeemed, the
Prepaid Securities to be redeemed shall be selected by the Trustee by lot.
Notice shall be given for an Issuer Redemption as set forth in
the Indenture. No fractional shares of Common Stock will be issued by the
Issuer with respect to the payment of the Issuer Redemption Price. The Holder
will receive cash in lieu of fractional shares otherwise issuable with respect
to such payment as provided in the Indenture.
Immediately prior to the effectiveness of a Merger or
Consolidation, each outstanding Prepaid Security shall automatically convert
into (a "Mandatory Conversion"), unless sooner redeemed, the right to receive,
and the Issuer shall issue and deposit with the Trustee, for the benefit of
the Holders, (i) one or more certificates representing a number of fully paid
and non-assessable shares of Common Stock, registered in the name of the
Trustee (or its nominee) as custodian for the Holders (such certificates for
shares of Common Stock, together with any dividends or distributions with
respect thereto, being hereinafter referred to as the "Mandatory Conversion
Settlement Fund"), equal to the Settlement Rate in effect on the Mandatory
Conversion Date, (ii) an amount in cash equal to all accrued and unpaid
Amounts in Respect of Contract Fees and Deferred Amounts in Respect of
Contract Fees, if any, on such Prepaid Security to but excluding the Mandatory
Conversion Date (and Amounts in Respect of Contract Fees shall cease to accrue
as of the Mandatory Conversion Date) and (iii) an amount in cash (except as
provided in herein) initially equal to $8.664 declining by $.008060 on each
day following November 6, 1996 (computed on the basis of a 360-day year of
twelve 30-day months) to $.4831 on August 31, 1999 and equal to zero
thereafter, in each case determined with reference to the Mandatory Conversion
Date.
At the option of the Issuer and provided the Issuer has
sufficient authorized and reserved shares of Common Stock, it may deliver to
the Agent, for the benefit of the Holders, on the Mandatory Conversion Date,
for the benefit of the Holders, in lieu of some or all the cash payment
referred to in clause (iii) of the preceding paragraph, a number of shares of
Common Stock (in addition to the shares of Common Stock referred to in clause
(i) of the preceding paragraph) equal to (x) the amount of such cash payment
that the Issuer has elected to pay in Common Stock divided by (y) the Current
Market Price of the Common Stock determined as of the second Business Day
immediately preceding the Notice Date applicable to such Mandatory Conversion
Date. Notice shall be given for a Mandatory Conversion as set forth in the
Indenture. No fractional shares of Common Stock will be issued by the Issuer
with respect to the payment of such amounts pursuant to clause (iii) above on
a Mandatory Conversion (if the Issuer so elects). The Holder will receive
cash in lieu of fractional shares otherwise issuable with respect to such
payment as provided in the Indenture.
Upon a Sale of Assets, each Prepaid Security shall
automatically convert into the right to receive, and the Issuer shall issue
and deposit with the Trustee, for the benefit of the Holders, an amount in
cash equal to the sum of (i) the Stated Amount and (ii) all accrued and unpaid
Amounts in Respect of Contract Fees and Deferred Amounts in Respect of
Contract Fees, if any, as provided for in the Indenture.
If an Event of Default shall have occurred and be continuing,
the Prepaid Securities shall be accelerated so that the Issuer shall become
immediately obligated to make the deliveries of Common Stock that the Issuer
would be obligated to make if the date of such acceleration were the Final
Settlement Date. Any obligations of the Issuer with respect to accrued and
unpaid Amounts in Respect of Contract Fees and Deferred Amounts in Respect of
Contract Fees shall be extinguished and of no further effect upon an Event of
Default, and in no event shall the Issuer be obligated to pay any amounts in
respect of accrued and unpaid Amounts in Respect of Contract Fees or Deferred
Amounts in Respect of Contract Fees, if any, upon an Event of Default.
The Security Certificates are issuable only in registered form
and only in denominations of a single Security and any integral multiple
thereof. The transfer of any Security Certificate will be registered and
Security Certificates may be exchanged as provided in the Indenture. The
Security Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Indenture.
No service charge shall be required for any such registration of transfer or
exchange, but the Issuer and the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Upon registration of transfer of this Security Certificate, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Trustee pursuant to
the Indenture), under the terms of the Indenture and the Prepaid Securities
evidenced hereby and the transferor shall be released from the obligations
under the Prepaid Securities evidenced by this Security Certificate. The
Issuer covenants and agrees, and the Holder, by his acceptance hereof,
likewise covenants and agrees, to be bound by the provisions of this
paragraph.
The Holder of this Security Certificate, by his acceptance
hereof, authorizes the Trustee to enter into and perform the related Prepaid
Securities forming part of the Securities evidenced hereby on his behalf as
his attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Prepaid Securities by the Issuer or its trustee in the
event that the Issuer becomes the subject of a case under the Bankruptcy Code,
agrees to be bound by the terms and provisions thereof, covenants and agrees
to perform his obligations under such Prepaid Securities, consents to the
provisions of the Indenture.
Subject to certain exceptions, the provisions of the Indenture
may be amended with the consent of the Holders of at least 66 2/3% of the
Outstanding Securities.
All terms used herein which are defined in the Indenture and
the First Supplemental Indenture have the meanings set forth therein.
The Prepaid Securities shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York without
regard to conflicts of law.
The Issuer, the Trustee and its Affiliates and any agent of the
Issuer or the Trustee may treat the Person in whose name this Security
Certificate is registered as the owner of the Securities evidenced hereby for
the purpose of receiving payments of Contract Fees and any Deferred Contract
Fees, performance of the Prepaid Securities and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Prepaid Securities shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of
Common Stock.
A copy of the Indenture is available for inspection at the
offices of the Trustee.
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on or after an Acceleration Date the
Final Settlement Date of the Purchase Contracts underlying the number of
Securities evidenced by this Security Certificate be registered in the name
of, and delivered, together with a check in payment for any fractional share,
to the undersigned at the address indicated below unless a different name and
address have been indicated below. If shares are to be registered in the name
of a Person other than the undersigned, the undersigned will pay any transfer
tax payable incident thereto.
Dated:_________________________________ __________________________________
Signature
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please print
such Person's name and address:
Please print name and address of
Registered Holder:
__________________________________ __________________________________
Name Name
__________________________________ __________________________________
Address Address
Social Security or other Taxpayer
Identification Number, if any __________________________________
EXHIBIT 4.7
Supplemental Indenture dated as of October 28, 1996 between
SunAmerica Inc., a Maryland corporation (the "Issuer"), and The First National
Bank of Chicago, a national banking association, as Trustee under the
Indenture dated as of April 15, 1993, as supplemented (the "Indenture";
terms defined in the Indenture have such defined meanings herein and
references herein to Sections and Articles refer to Sections and Articles
in the Indenture as amended hereby), between the Issuer and the Trustee.
WHEREAS, the Issuer desires to amend the Indenture to authorize
the issuance of Securities of any series convertible into any cash, securities
or property, at the option of the Issuer or Holders of Securities of such
series or upon the happening of some event or otherwise, as specified for the
Securities of such series pursuant to Section 2.3.
WHEREAS, Section 8.1 authorizes supplemental indentures which
add to the covenants of the Issuer or make other provisions not inconsistent
with the Indenture which shall not adversely affect the interests of the
Holders of the Securities.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
The Issuer covenants and agrees with the Trustee as follows:
Article One
Amendment to Indenture
Section 1.01. The definition of "Outstanding" in Section 1.1
is hereby amended to add to the end thereof before the period: or Securities
converted pursuant hereto or Securities not deemed outstanding pursuant to
Section 13.2.
Section 1.02. Section 2.3(2) is hereby amended to substitute a
comma for "or" on the last line thereof and insert after "12.3": or 13.3.
Section 1.03: Section 2.3 is hereby further amended by
deleting "and" at the end of Section 2.3(18), changing the designation of
Section 2.3(19) to "2.3(20)" and inserting after Section 2.3(18):
(19) if the Securities of such series are to be convertible
into any cash, securities or property, at the option of the Holders
or the Issuer or upon the happening of some event or otherwise, all
terms relating to such convertibility, including without limitation
any term inconsistent with the provisions of this Indenture relating
to conversion; and
Section 1.04. Section 2.7 is hereby amended to insert after
"payment date" on the 8th line of the 3rd paragraph: (but subject to Section
13.2 in the case of any conversion during such period).
Section 1.05. Section 2.10 is hereby amended to insert
"conversion," after "payment," at the beginning of the 3rd line.
Section 1.06. Section 3.2 is hereby amended to insert "or
conversion" after "exchange" on the 7th line of the 1st paragraph and on the
5th line of the 5th paragraph.
Section 1.07. Section 5.1(c) is hereby amended to insert after
"series" at the end thereof: or default in the conversion of any Security
specified to be convertible as contemplated by Section 2.3 and the continuance
of such default for 45 days.
Section 1.08. Section 5.7 is hereby amended to insert before
the last word, "shall", on the 8th line: or the right to convert such
Security, if any, or to institute suit therefor,.
Section 1.09. Section 8.1 is hereby amended to delete "and" at
the end of Section 8.1(e), substitute "; and" for the period at the end of
Section 8.1(f) and insert new Section 8.1(g) thereafter:
(g) to add any provision hereto or remove or change any
provision hereof relating to the conversion of any Securities,
whether at the option of the Holders or the Issuer or upon the
happening of some event or otherwise, provided that no such action
shall adversely affect the interest of Holders of Outstanding
Securities.
Section 1.10. Section 8.2 is hereby amended to insert "or
conversion (if applicable)" after "institute suit for the payment" at the end
of the 8th to last line in 1st paragraph and to insert "and any right to
convert" after "any right of repayment at the option of the Security-
holder", on the line two lines below such 8th to last line in the 1st
paragraph.
Section 1.11. Section 12.2 is hereby amended:
(a) to insert at the end of the 1st sentence of the 2nd
paragraph: and will specify any conversion price then in effect and
when the right to convert such Security or part thereof to be
redeemed will expire.
(b) to insert in the 4th paragraph on the 8th line after "for
redemption": (other than those, if any, theretofore surrendered for
conversion).
(c) to insert after the 1st sentence in the 4th paragraph: If
any Security called for redemption is converted pursuant hereto, and
money deposited with the Trustee or any paying agent or so segregated
and held in trust for the redemption of such Security shall be paid
to the Issuer upon the Issuer's request, or, if then held by the
Issuer, shall be discharged from such trust.
(d) Insert at the end of the last paragraph: If any Security
selected for partial redemption is surrendered for conversion after
such selection, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption.
Upon any redemption of less than all the Securities of any series,
the Issuer and the Trustee may treat as outstanding any Securities of
such series surrendered for conversion during the period of 15 days
next preceding the mailing of such series of a notice of redemption,
and need not treat as outstanding any Security authenticated and
delivered during such period in exchange for the unconverted portion
of any Security of such series converted in part during such period."
Section 1.12. Section 12.5 is hereby amended to insert after
"by the Issuer" beginning line 9 of the 2nd paragraph: or converted.
Section 1.13. Section 12.5 is hereby amended to insert at the
end of the 4th paragraph: The Issuer's obligation to make a mandatory or
optional sinking fund payment shall automatically be reduced by an amount
equal to the sinking fund redemption price allocable to any Securities or
portions thereof called for redemption pursuant to the preceding paragraph on
any sinking fund payment date which are converted prior to such sinking fund
payment date; provided, that if the Trustee is not the conversion agent for
the Securities, the Issuer or such conversion agent shall give the Trustee
written notice prior to the date fixed for redemption of the principal amount
of Securities or portions thereof so converted.
Section 1.14. Article Thirteen is hereby inserted after
Article Twelve:
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
SECTION 13.1. Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which are
convertible before their maturity except as otherwise specified as
contemplated by Section 2.3 for Securities of such series.
SECTION 13.2. Conversion. Subject to and upon compliance with
the provisions of this Article, any Security which by its terms specified as
contemplated by Section 2.3 is convertible into any cash, securities or
property ("Conversion Proceeds") may, at any time until and including but not
after the close of business on the date of maturity of such Security, or in
case such Security or some portion thereof shall be called for redemption
prior to such date, then, with respect to such Security or such portion thereof
as is so called, until and including but (if no default is made in making due
provision for the payment of the redemption price) not after the close of
business on the date fixed for redemption, be converted, in whole, or in part
in multiples of $1,000 principal amount, at 100% of the principal amount of
such Security (or portion thereof), into the Conversion Proceeds issuable upon
conversion of such Security, at the conversion price in effect at the Date of
Conversion (as hereinafter defined).
SECTION 13.3 Exercise of Conversion. In order to convert, the
Holder of any Security to be converted shall surrender such Security to the
Issuer at any time during usual business hours at its office or agency
maintained for the purpose as provided in this Indenture, accompanied by a
fully executed written notice, in substantially the form set forth on the
reverse of the Security, that the Holder elects to convert such Security or a
stated portion thereof constituting a multiple of $1,000 principal amount,
and, if such Security is surrendered for conversion during the period between
the close of business on any record date and the opening of business on the
following interest payment date and has not been called for redemption on a
redemption date within such period (or on such interest payment date),
accompanied also by payment of an amount equal to the interest payable on such
interest payment date on the principal amount of the Security being
surrendered for conversion. Such notice shall also state the name or names
(with address) in which any certificate or certificates for Conversion
Proceeds constituting securities shall be issued. Securities surrendered for
conversion shall (if so required by the Issuer or the Trustee) be duly
endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer duly executed by, the Holder or
his attorney duly authorized in writing. As promptly as practicable after the
receipt of such notice and the surrender of such Security as aforesaid, the
Issuer shall, subject to the provisions of this Article Thirteen, deliver the
Conversion Proceeds thereof at such office or agency to such Holder, or on his
written order. Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date (herein called the
"Date of Conversion") on which such notice shall have been received by the
Issuer and such Security shall have been surrendered as aforesaid, and the
person or persons in whose name or names any certificate or certificates for
Conversion Proceeds constituting securities shall be issuable upon such
conversion shall be deemed to have become on the Date of Conversion the holder
or holders of record of the securities represented thereby; provided, however,
that any such surrender on any date when the stock transfer books for such
securities shall be closed shall constitute the person or persons in whose
name or names the certificate or certificates are to be issued as the
recordholder or holders thereof for all purposes at the opening of business on
the next succeeding day on which such stock transfer books are open but such
conversion shall nevertheless be at the conversion price in effect at the
close of business on the date when such Security shall have been so
surrendered with the conversion notice. In the case of conversion of a
portion, but less than all, of a Security, the Issuer shall execute, and the
Trustee shall authenticate and deliver to the holder thereof, at the expense
of the Issuer, a Security or Securities in the aggregate principal amount of
the unconverted portion of the Security surrendered. Except as otherwise
expressly provided in this Indenture, no payment or adjustment shall be made
for interest accrued on any Security (or portion thereof) converted or for
dividends or distributions on any security issued upon conversion of any
Security.
SECTION 13.4 Fractional Interests. No fractions of any
security or scrip representing fractions thereof shall be issued upon
conversion of Securities. If more than one Security shall be surrendered for
conversion at one time by the same Holder, the number of full securities which
shall be issuable upon conversion thereof shall be computed on the basis of
the aggregate principal amount of the Securities so surrendered. If any
fraction of any security would, except for the provisions of this Section, be
issuable on the conversion of any Security or Securities, the Issuer shall
make payment in lieu thereof in an amount of United States dollars equal to
the value of such fraction computed on the basis of the current market price
of such security on the last business day prior to the Date of Conversion.
SECTION 13.5 Conversion Price. The conversion price
("Conversion Price") per unit of Conversion Proceeds issuable upon conversion
of the Securities, if any, shall initially be the amount specified as
contemplated in Section 2.3 for the Securities of any series and shall be
subject to adjustment from time to time as specified as contemplated in
Section 2.3 for the Securities of such series. Whenever the Conversion Price
is adjusted as herein provided, the Issuer shall promptly (i) file with the
Trustee and each conversion agent an Officers' Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment, which certificate shall be conclusive
evidence of the correctness of such adjustment, and (ii) mail or cause to be
mailed a notice of such adjustment to each Holder of Securities at his address
as the same appears on the registry books of the Issuer. The Issuer shall be
entitled to make such reductions in the Conversion Price, in addition to those
required by this Section, as it in its discretion shall determine to be
advisable in order that any stock dividend, subdivision of shares,
distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by the
Issuer to its stockholders shall not be taxable.
SECTION 13.6 Continuation of Conversion in Case of
Reclassification, Change, Merger, Consolidation or Sale of Assets. If any of
the following shall occur, namely: (a) any reclassification or change of
outstanding securities issuable upon conversion of the Securities (other than
a change in par value, or from par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination), (b) any
consolidation or merger to which the Issuer is a party as a result of which
the holders of such securities shall be entitled to receive stock, other
securities or other assets with respect to or in exchange for such securities
or (c) sale or conveyance of all or substantially all of the property or
business of the Issuer as an entirety (if the Issuer is the issuer of such
securities), then the Issuer, or such successor or purchasing corporation, as
the case may be, shall, as a condition precedent to such reclassification,
change, consolidation, merger, sale or conveyance, execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Security
then Outstanding shall have the right to convert such Security into the kind
and amount of securities and property receivable upon such reclassification,
change, consolidation, merger, sale or conveyance by a holder of the amount of
such securities issuable upon conversion of such Security immediately prior
to such reclassification, change, consolidation, merger, sale or conveyance.
Such supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments specified as
contemplated by Section 2.3 for Securities of the series. If, in the case of
any such consolidation, merger, sale or conveyance, the securities and
property receivable thereupon by a holder of outstanding securities issuable
upon conversion includes shares of stock or other securities and property of a
corporation other than the successor or purchasing corporation, as the case
may be, in such consolidation, merger, sale or conveyance, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the
holders of the Securities as the Board of Directors shall reasonably consider
necessary by reason of the foregoing. The provisions of this Section shall
similarly apply to successive consolidations, mergers, sales or conveyances.
Notice of the execution of each such supplemental indenture
shall be mailed to each Holder of Securities at his address as the same
appears on the registry books of the Issuer.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property receivable by Holders of Securities upon the
conversion of their Securities after any such reclassification, change,
consolidation, merger, sale or conveyance or to any adjustment to be made with
respect thereto, but, subject to the provisions of Sections 6.1 and 6.2, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers' Certificate (which the
Issuer shall be obligated to file with the Trustee prior to the execution of
any such supplemental indenture) with respect thereto.
SECTION 13.7 Notice of Certain Events. So long as any
convertible Securities are outstanding, in case:
(a) the Issuer shall declare a dividend (or any other
distribution) payable to the holders of any securities constituting
Conversion Proceeds otherwise than in cash; or
(b) the Issuer shall authorize the granting to the holders of
such securities of rights to subscribe for or purchase any shares of
stock of any class or of any other rights; or
(c) the Issuer shall authorize any reclassification or change
of such securities (other than a subdivision or combination of such
securities), or any consolidation or merger to which the Issuer is a
party and for which approval of any stockholders of the Issuer is
required, or the sale or conveyance of all or substantially all the
property or business of the Issuer; or
(d) there shall be proposed any voluntary or involuntary
dissolution, liquidation or winding-up of the Issuer;
then, the Issuer shall cause to be filed at the office or agency maintained
for the purpose of conversion of the Securities as provided in Section 3.2,
and shall cause to be mailed to each Holder of Securities, at his address as it
shall appear on the registry books of the Issuer, at least 20 days before the
date hereinafter specified (or the earlier of the dates hereinafter specified,
in the event that more than one date is specified), a notice stating the date
on which (1) a record is expected to be taken for the purpose of such
dividend, distribution or rights, or if a record is not to be taken, the date
as of which the holders of such securities of record to be entitled to such
dividend, distribution or rights are to be determined, or (2) such
reclassification, change, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding-up is expected to become effective and the
date, if any is to be fixed, as of which it is expected that holders of such
securities of record shall be entitled to exchange their such securities for
securities or other property deliverable upon such reclassification, change,
consolidation, merger, sale, conveyance, dissolution, liquidation or
winding-up.
SECTION 13.8 Taxes on Conversion. The Issuer will pay any and
all documentary, stamp or similar taxes payable to the United States of
America or any political subdivision or taxing authority thereof or therein in
respect of the issue or delivery of Conversion Proceeds on conversion of
Securities pursuant thereto; provided, however, that the Issuer shall not be
required to pay any tax which may be payable in respect of any transfer
involved in the issue or delivery of Conversion Proceeds in a name other than
that of the holder of the Securities to be converted and no such issue or
delivery shall be made unless and until the person requesting such issue or
delivery has paid to the Issuer the amount of any such tax or has established,
to the satisfaction of the Issuer, that such tax has been paid. The Issuer
extends no protection with respect to any other taxes imposed in connection
with conversion of Securities.
SECTION 13.9 Issuer to Provide Stock. To the extent that any
Securities are convertible into securities of the Issuer, the Issuer shall
reserve, free from pre-emptive rights, out of its authorized but unissued
securities, sufficient securities to provide for the conversion of the
Securities from time to time as such Securities are presented for conversion,
provided, that nothing contained herein shall be construed to preclude the
Issuer from satisfying its obligations in respect of the conversion of
Securities by delivery of repurchased Securities which are held in the
treasury of the Issuer.
If any securities to be reserved for the purpose of conversion
of Securities hereunder require registration with or approval of any
governmental authority under any Federal or State law before such securities
may be validly issued or delivered upon conversion, then the Issuer covenants
that it will in good faith and as expeditiously as possible endeavor to secure
such registration or approval, as the case may be, provided, however, that
nothing in this Section shall be deemed to affect in any way any obligation
of the Issuer to convert Securities.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of such
securities, the Issuer will take all corporate action which may, in the
Opinion of Counsel, be necessary in order that the Issuer may validly and
legally issue fully paid and non-assessable such securities at such adjusted
Conversion Price.
The Issuer covenants that all securities of the Issuer which
may be issued upon conversion of Securities will upon issue be fully paid and
non-assessable by the Issuer and free of pre-emptive rights.
SECTION 13.10 Disclaimer of Responsibility for Certain
Matters. Neither the Trustee nor any agent of the Trustee shall at any time
be under any duty or responsibility to any holder of Securities to determine
whether any facts exist which may require any adjustment of the Conversion
Price, or with respect to the Officers' Certificate referred to in Section
13.5, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed, or herein or in any supplemental
indenture as specified as contemplated in Section 2.3 provided to be employed,
in making the same. Neither the Trustee nor any agent of the Trustee shall be
accountable with respect to the validity or value (or the kind or amount) of
any securities or property, which may at any time be issued or delivered upon
the conversion of any Security; and neither the Trustee nor any conversion
agent makes any representation with respect thereto. Neither the Trustee nor
any agent of the Trustee shall be responsible for any failure of the Issuer to
issue, register the transfer of or deliver any securities or property upon the
surrender of any Security for the purpose of conversion or, subject to
Sections 6.1 and 6.2, to comply with any of the covenants of the Issuer
contained in this Article or specified as contemplated in Section 2.3.
SECTION 13.11 Return of Funds Deposited for Redemption of
Converted Securities. Any funds which at any time shall have been deposited
by the Issuer or on its behalf with the Trustee or any paying agent for the
purpose of paying the principal of and interest on any of the Securities and
which shall not be required for such purposes because of the conversion of
such Securities, shall after such conversion be repaid to the Issuer by the
Trustee or such other paying agent.
Article Two
Miscellaneous Provisions
SECTION 2.01. The Indenture, as supplemented by this
Supplemental Indenture, is in all respects ratified and confirmed, and this
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 2.02. The recitals herein contained are made by the
Issuer and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture.
SECTION 2.03. This Supplemental Indenture may be executed in
any number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
SUNAMERICA INC.
By: ______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By: ______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
STATE OF CALIFORNIA )
) ss.:
COUNTY OF Los Angeles )
On the 28th day of October, in the year one thousand nine
hundred ninety-six, before me personally came James R. Belardi to me known,
who, being by me duly sworn, did depose and say that he resides at
; that he is
of SUNAMERICA INC., one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporation
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
______________________________
NOTARY PUBLIC
My Commission Expires
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 28th day of October, in the year one thousand nine
hundred ninety-six, before me personally came to me known, who,
being by me duly sworn, did depose and say that he resides at
, that he is a of THE FIRST NATIONAL BANK OF
CHICAGO, one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation and that he signed his
name thereto by like authority.
______________________________
NOTARY PUBLIC
My Commission Expires
EXHIBIT 4.8
Supplemental Indenture dated as of October 28, 1996, between
SunAmerica Inc., a Maryland corporation (the "Company"), and The First
National Bank of Chicago, a national banking association, as Trustee under the
Indenture dated as of March 15, 1995, as supplemented (the "Indenture"; terms
defined in the Indenture have such defined meanings herein and references
herein to Sections and Articles refer to Sections and Articles in the
Indenture amended hereby), between the Company and the Trustee.
WHEREAS, the Company desires to amend the Indenture to
authorize the issuance of Debentures of any series convertible into any cash,
securities or property, at the option of the Company or holders of Debentures
of such series or upon the happening of some event or otherwise, as specified
for the Debentures of such series pursuant to Section 2.01.
WHEREAS, Section 9.01 authorizes supplemental indentures which
add to the covenants of the Company or make other provisions not inconsistent
with the Indenture which shall not adversely affect the interests of the
holders of the Debentures.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
The Company covenants and agrees with the Trustee as follows:
Article One
Amendment to Indenture
Section 1.01. The definition of "Outstanding" in Section 1.01
is hereby amended to add at the end thereof before the period: or Debentures
converted pursuant hereto.
Section 1.02. Section 2.01 is hereby amended by adding after
(13): (14) If the Debentures of the series are to be convertible into any
cash, security or property, at the option of the holders of such Debentures or
the Company or upon the happening of some event or otherwise, all terms
relating to such convertibility, including without limitation any term
inconsistent with the provisions of this Indenture relating to conversion.
Section 1.03. Section 2.08 is hereby amended by inserting
"conversion," after "redemption," on line 1.
Section 1.04. Section 3.02(a) is hereby amended by inserting
after the first sentence of the second paragraph: Each such notice shall also
specify any conversion price then applicable to such Debentures and when any
right to convert such Debentures or any portion thereof called for redemption
will expire.
Section 1.05. Section 3.05 is hereby amended to insert "or
converted" after "Debentures" in the fifth line.
Section 1.06. Section 4.02 is hereby amended to insert "or
conversion, if applicable," at the end of clause (i).
Section 1.07. Section 6.01(a)(2) is hereby amended to insert
at the end thereof: or default in the conversion of any Debenture of that
series made convertible pursuant to Section 2.01 and the continuance of such
default for a period of 45 days.
Section 1.08. Section 6.04 is hereby amended to insert, in the
5th line of the second paragraph thereof after "date": or the right to convert
such Debenture, if any, or to institute suit therefor.
Section 1.09. Section 9.01 is hereby amended to substitute ";
or" for the period at the end of clause (d) and to insert a new clause (e)
after clause (d):
(e) to add any provision hereto or remove or change any
provision hereof relating to the conversion of any Debentures, whether at the
option of the Holders or the Company or upon the happening of some event or
otherwise, provided that no such action shall adversely affect the interest of
Debentureholders.
Section 1.10. Article Fifteen is hereby added after Article
Fourteen:
ARTICLE FIFTEEN
CONVERSION OF Debentures
SECTION 15.01. Applicability of Article. The provisions of
this Article shall be applicable to the Debentures of any series which are
convertible before their maturity except as otherwise specified as
contemplated by Section 2.01 for Debentures of such series.
SECTION 15.02. Conversion. Subject to and upon compliance
with the provisions of this Article, any Debenture which by its terms
specified as contemplated by Section 2.01 is convertible into any cash,
securities or property ("Conversion Proceeds") may, at any time until and
including but not after the close of business on the date of maturity of such
Debenture, or in case such Debenture or some portion thereof shall be called
for redemption prior to such date, then, with respect to such Debenture or
such portion thereof as is so called, until and including but (if no
default is made in making due provision for the payment of the redemption
price) not after the close of business on the date fixed for redemption, be
converted, in whole, or in part in multiples of $1,000 principal amount, at
100% of the principal amount of such Debenture (or portion thereof), into
the Conversion Proceeds issuable upon conversion of such Debenture, at the
conversion price in effect at the Date of Conversion (as hereinafter
defined).
SECTION 15.03 Exercise of Conversion. In order to convert,
the holder of any Debenture to be converted shall surrender such Debenture to
the Company at any time during usual business hours at its office or agency
maintained for the purpose as provided in this Indenture, accompanied by a
fully executed written notice, in substantially the form set forth on the
reverse of the Debenture, that the holder elects to convert such Debenture or
a stated portion thereof constituting a multiple of $1,000 principal amount,
and, if such Debenture is surrendered for conversion during the period between
the close of business on any record date and the opening of business on the
following interest payment date and has not been called for redemption on a
redemption date within such period (or on such interest payment date),
accompanied also by payment of an amount equal to the interest payable on such
interest payment date on the principal amount of the Debenture being
surrendered for conversion. Such notice shall also state the name or names
(with address) in which any certificate or certificates for Conversion
Proceeds constituting securities shall be issued. Debentures surrendered for
conversion shall (if so required by the Company or the Trustee) be duly
endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company duly executed by, the holder or
his attorney duly authorized in writing. As promptly as practicable after the
receipt of such notice and the surrender of such Debenture as aforesaid, the
Company shall, subject to the provisions of this Article Fifteen, deliver the
Conversion Proceeds thereof at such office or agency to such holder, or on his
written order. Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date (herein called the
"Date of Conversion") on which such notice shall have been received by the
Company and such Debenture shall have been surrendered as aforesaid, and the
person or persons in whose name or names any certificate or certificates for
Conversion Proceeds constituting securities shall be issuable upon such
conversion shall be deemed to have become on the Date of Conversion the holder
or holders of record of the securities represented thereby; provided, however,
that any such surrender on any date when the stock transfer books for such
securities shall be closed shall constitute the person or persons in whose
name or names the certificate or certificates are to be issued as the
recordholder or holders thereof for all purposes at the opening of business on
the next succeeding day on which such stock transfer books are open but such
conversion shall nevertheless be at the conversion price in effect at the
close of business on the date when such Debenture shall have been so
surrendered with the conversion notice. In the case of conversion of a
portion, but less than all, of a Debenture, the Company shall execute, and the
Trustee shall authenticate and deliver to the holder thereof, at the expense
of the Company, a Debenture or Debentures in the aggregate principal amount of
the unconverted portion of the Debenture surrendered. Except as otherwise
expressly provided in this Indenture, no payment or adjustment shall be made
for interest accrued on any Debenture (or portion thereof) converted or for
dividends or distributions on any security issued upon conversion of any
Debenture.
SECTION 15.04 Fractional Interests. No fractions of any
security or scrip representing fractions thereof shall be issued upon
conversion of Debentures. If more than one Debenture shall be surrendered for
conversion at one time by the same holder, the number of full securities which
shall be issuable upon conversion thereof shall be computed on the basis of
the aggregate principal amount of the Debentures so surrendered. If any
fraction of any security would, except for the provisions of this Section, be
issuable on the conversion of any Debenture or Debentures, the Company shall
make payment in lieu thereof in an amount of United States dollars equal to
the value of such fraction computed on the basis of the current market price
of such security on the last business day prior to the Date of Conversion.
SECTION 15.05 Conversion Price. The conversion price
("Conversion Price") per unit of Conversion Proceeds issuable upon conversion
of the Debentures, if any, shall initially be the amount specified as
contemplated in Section 2.01 for the Debentures of any series and shall be
subject to adjustment from time to time as specified as contemplated in
Section 2.01 for the Debentures of such series. Whenever the Conversion Price
is adjusted as herein provided, the Company shall promptly (i) file with the
Trustee and each conversion agent an Officers' Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment, which certificate shall be conclusive
evidence of the correctness of such adjustment, and (ii) mail or cause to be
mailed a notice of such adjustment to each holder of Debentures at his address
as the same appears on the registry books of the Company. The Company
shall be entitled to make such reductions in the Conversion Price, in
addition to those required by this Section, as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights or warrants to purchase stock or securities,
or distribution of other assets (other than cash dividends) hereafter made
by the Company to its stockholders shall not be taxable.
SECTION 15.06 Continuation of Conversion in Case of
Reclassification, Change, Merger, Consolidation or Sale of Assets. If any of
the following shall occur, namely: (a) any reclassification or change of
outstanding securities issuable upon conversion of the Debentures (other than
a change in par value, or from par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination), (b) any
consolidation or merger to which the Company is a party as a result of which
the holders of such securities shall be entitled to receive stock, other
securities or other assets with respect to or in exchange for such securities
or (c) sale or conveyance of all or substantially all of the property or
business of the Company as an entirety (if the Company is the issuer of such
securities), then the Company, or such successor or purchasing corporation, as
the case may be, shall, as a condition precedent to such reclassification,
change, consolidation, merger, sale or conveyance, execute and deliver to the
Trustee a supplemental indenture providing that the holder of each Debenture
then Outstanding shall have the right to convert such Debenture into the kind
and amount of securities and property receivable upon such reclassification,
change, consolidation, merger, sale or conveyance by a holder of the amount of
such securities issuable upon conversion of such Debenture immediately prior
to such reclassification, change, consolidation, merger, sale or conveyance.
Such supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments specified as
contemplated by Section 2.3 for Debentures of the series. If, in the case of
any such consolidation, merger, sale or conveyance, the securities and
property receivable thereupon by a holder of outstanding securities issuable
upon conversion includes shares of stock or other securities and property of a
corporation other than the successor or purchasing corporation, as the case
may be, in such consolidation, merger, sale or conveyance, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the
holders of the Debentures as the Board of Directors shall reasonably consider
necessary by reason of the foregoing. The provisions of this Section shall
similarly apply to successive consolidations, mergers, sales or conveyances.
Notice of the execution of each such supplemental indenture
shall be mailed to each holder of Debentures at his address as the same
appears on the registry books of the Company.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property receivable by holders of Debentures upon the
conversion of their Debentures after any such reclassification, change,
consolidation, merger, sale or conveyance or to any adjustment to be made with
respect thereto, but, subject to the provisions of Sections 7.01 and 7.02, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers' Certificate (which the
Company shall be obligated to file with the Trustee prior to the execution of
any such supplemental indenture) with respect thereto.
SECTION 15.07 Notice of Certain Events. So long as any
convertible Securities are outstanding, in case:
(a) the Company shall declare a dividend (or any other
distribution) payable to the holders of any securities constituting
Conversion Proceeds otherwise than in cash; or
(b) the Company shall authorize the granting to the holders of
such securities of rights to subscribe for or purchase any shares of
stock of any class or of any other rights; or
(c) the Company shall authorize any reclassification or change
of such securities (other than a subdivision or combination of such
securities), or any consolidation or merger to which the Company is
a party and for which approval of any stockholders of the Company is
required, or the sale or conveyance of all or substantially all the
property or business of the Company; or
(d) there shall be proposed any voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
then, the Company shall cause to be filed at an office or agency maintained
for the purpose of conversion of the Debentures, and shall cause to be mailed
to each holder of Debentures, at his address as it shall appear on the
registry books of the Company, at least 20 days before the date hereinafter
specified (or the earlier of the dates hereinafter specified, in the event
that more than one date is specified), a notice stating the date on which (1)
a record is expected to be taken for the purpose of such dividend,
distribution or rights, or if a record is not to be taken, the date as of
which the holders of such securities of record to be entitled to such
dividend, distribution or rights are to be determined, or (2) such
reclassification, change, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding-up is expected to become effective and
the date, if any is to be fixed, as of which it is expected that holders of
such securities of record shall be entitled to exchange their such
securities for securities or other property deliverable upon such
reclassification, change, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding-up.
SECTION 15.08 Taxes on Conversion. The Company will pay any
and all documentary, stamp or similar taxes payable to the United States of
America or any political subdivision or taxing authority thereof or therein in
respect of the issue or delivery of Conversion Proceeds on conversion of
Debentures pursuant thereto; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer
involved in the issue or delivery of Conversion Proceeds in a name other than
that of the holder of the Debentures to be converted and no such issue or
delivery shall be made unless and until the person requesting such issue or
delivery has paid to the Company the amount of any such tax or has
established, to the satisfaction of the Company, that such tax has been paid.
The Company extends no protection with respect to any other taxes imposed in
connection with conversion of Debentures.
SECTION 15.09 Company to Provide Stock. To the extent that
any Debentures are convertible into securities of the Company, the Company
shall reserve, free from pre-emptive rights, out of its authorized but
unissued securities, sufficient securities to provide for the conversion of
the Debentures from time to time as such Debentures are presented for
conversion, provided, that nothing contained herein shall be construed to
preclude the Company from satisfying its obligations in respect of the
conversion of Debentures by delivery of repurchased Debentures which are
held in the treasury of the Company.
If any securities to be reserved for the purpose of conversion
of Debentures hereunder require registration with or approval of any
governmental authority under any Federal or State law before such securities
may be validly issued or delivered upon conversion, then the Company covenants
that it will in good faith and as expeditiously as possible endeavor to secure
such registration or approval, as the case may be, provided, however, that
nothing in this Section shall be deemed to affect in any way any obligation
of the Company to convert Debentures.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of such
securities, the Company will take all corporate action which may, in the
Opinion of Counsel, be necessary in order that the Company may validly and
legally issue fully paid and non-assessable such securities at such adjusted
Conversion Price.
The Company covenants that all securities of the Company which
may be issued upon conversion of Debentures will upon issue be fully paid and
non-assessable by the Company and free of pre-emptive rights.
SECTION 15.10 Disclaimer of Responsibility for Certain
Matters. Neither the Trustee nor any agent of the Trustee shall at any time
be under any duty or responsibility to any holder of Debentures to determine
whether any facts exist which may require any adjustment of the Conversion
Price, or with respect to the Officers' Certificate referred to in Section
15.05, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed, or herein or in any supplemental
indenture as specified as contemplated in Section 2.01 provided to be
employed, in making the same. Neither the Trustee nor any agent of the
Trustee shall be accountable with respect to the validity or value (or the
kind or amount) of any securities or property, which may at any time be issued
or delivered upon the conversion of any Debenture; and neither the Trustee nor
any conversion agent makes any representation with respect thereto. Neither
the Trustee nor any agent of the Trustee shall be responsible for any failure
of the Company to issue, register the transfer of or deliver any securities or
property upon the surrender of any Debenture for the purpose of conversion or,
subject to Sections 7.01 and 7.02, to comply with any of the covenants of the
Company contained in this Article or specified as contemplated in Section
2.01.
SECTION 15.11 Return of Funds Deposited for Redemption of
Converted Debentures. Any funds which at any time shall have been deposited
by the Company or on its behalf with the Trustee or any paying agent for the
purpose of paying the principal of and interest on any of the Debentures and
which shall not be required for such purposes because of the conversion of
such Debentures, shall after such conversion be repaid to the Company by the
Trustee or such other paying agent.
ARTICLE TWO
Miscellaneous Provisions
SECTION 2.01. The Indenture, as supplemented by this
Supplemental Indenture, is in all respects ratified and confirmed, and this
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 2.02. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture.
SECTION 2.03. This Supplemental Indenture may be executed in
any number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
SUNAMERICA INC.
By: ______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By: ______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
STATE OF CALIFORNIA )
) ss.:
COUNTY OF Los Angeles )
On the 28th day of October, in the year one thousand nine
hundred ninety-six, before me personally came to me known,
who, being by me duly sworn, did depose and say that he resides at
; that he is
of SUNAMERICA INC., one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporation
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
______________________________
NOTARY PUBLIC
My Commission Expires
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 28th day of October, in the year one thousand nine
hundred ninety-six, before me personally came to me known, who,
being by me duly sworn, did depose and say that he resides at
, that he is a of THE FIRST NATIONAL BANK OF
CHICAGO, one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation and that
he signed his name thereto by like authority.
______________________________
NOTARY PUBLIC
My Commission Expires
