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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 : November 7, 1996
(Date of earliest event reported)
SUNAMERICA INC.
SUNAMERICA CAPITAL TRUST III
(Exact name of registrant as specified in its charter)
Maryland
Delaware
(State of Incorporation)
(Commission File Number) (IRS Employer Identification No.)
1-4618 86-0176061
1-4618-02 95-6994850
1 SunAmerica Center, Los Angeles, California 90067-6022
(Address of principal executive offices)
Registrant's Telephone Number, including area code:
(310) 772-6000
(310) 772-6000
ITEM 5. OTHER EVENTS
Exhibits are filed herewith in connection with the issuance by
SunAmerica Capital Trust III (the "Trust") of its 8.30% Trust Originated
Preferred Securities pursuant to Registration Statement Nos. 333-14201 and
333-14201-01 filed by SunAmerica Inc. ("SunAmerica") and the Trust.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS
EXHIBITS
Exhibit
- -------
1.3 Underwriting Agreement (Preferred Securities) dated as of
November 7, 1996, among SunAmerica, the Trust and the
underwriters named therein, including the SunAmerica Capital
Trusts and SunAmerica Inc. Underwriting Agreement Standard
Provisions (Preferred Securities), dated September 29, 1995
4.13 Amended and Restated Declaration of Trust of SunAmerica Capital
Trust III dated as of November 13, 1996 among SunAmerica and
the trustees of the Trust.
4.14 Form of Non-convertible Preferred Security (included in Exhibit
4.13)
4.16 Fourth Supplemental Indenture dated as of November 13, 1996
between SunAmerica and The First National Bank of Chicago
4.17 Form of Non-convertible Junior Subordinated Debt Security
(included in Exhibit 4.16)
8 Tax Opinion of Davis Polk & Wardwell
23.3 Consent of Davis Polk & Wardwell (included in Exhibit 8)
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
SUNAMERICA, INC.
By: /s/ James R. Belardi
-------------------------
James R. Belardi
Executive Vice President
SUNAMERICA CAPITAL TRUST III
By: SunAmerica, Inc.,
as Sponsor
By: /s/ James R. Belardi
-------------------------
James R. Belardi
Executive Vice President
Dated: November 7, 1996
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EXHIBIT 1.3
UNDERWRITING AGREEMENT
November 7, 1996
SunAmerica Capital Trust III
c/o SunAmerica Inc.
1 SunAmerica Center
Century City
Los Angeles, California 90067-6022
SunAmerica Inc.
1 SunAmerica Center
Century City
Los Angeles, California 90067-6022
Dear Sirs:
We (collectively, the "Manager") are acting on behalf of the
underwriter or underwriters (including ourselves) named below (such
underwriter or underwriters being herein called the "Underwriters"), and we
understand that SunAmerica Capital Trust III (the "Trust"), a statutory
business trust organized under the Business Trust Act (the "Delaware Act") of
the State of Delaware (Chapter 38, Title 12, of the Delaware Code, l2 Del. C.
Section 3801 et seq.), proposes to issue and sell 12,000,000 shares of its
8.30% Trust Originated Preferred Securities([SM]) ("TOPrS([SM])")(the "Firm
Securities") and not more than 1,800,000 shares of its 8.30% TOPrS (the
"Additional Securities"), if any, to the extent we shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such Additional
Securities on the terms described below. The Firm Securities and the
Additional Securities are hereinafter collectively referred to herein as the
"Preferred Securities."
It is understood that substantially contemporaneously with the
closing of the sale of the Firm Securities to the Underwriters contemplated
hereby, (i) the Trust, its trustees (the "Trustees") and the Company shall
take all necessary action to adopt an Amended and Restated Declaration of
Trust in substantially the form of the Form of Amended and Restated
Declaration of Trust attached as Exhibit 4.13 to the Registration Statement
referred to below (as so amended and restated, the "Declaration"), pursuant to
which the Trust shall (x) issue and sell the Preferred Securities to the
Underwriters pursuant hereto and (y) issue 426,805 shares of its 8.30% Trust
Originated Common Securities (the "Common Securities" and, together with the
Preferred Securities, the "Trust Securities") to the Company, in each case
with such rights and obligations as shall be set forth in such Declaration,
(ii) the Company and The First National Bank of Chicago, as Trustee, acting
pursuant to an Indenture dated as of March 15, 1995, as amended by a
Supplemental Indenture dated as of October 28, 1996, shall enter into a Fourth
Supplemental Indenture in substantially the form of the Form of Supplemental
Indenture attached as Exhibit 4.16 to the Registration Statement referred to
below (the "Supplemental Indenture," and the Indenture, as so amended and
supplemented, the "Indenture") providing for the issuance of (A) $300,000,000
principal amount of the Company's 8.30% Junior Subordinated Debentures due
2045 (the "Debentures") and (B) up to $45,000,000 principal amount of
additional Debentures if and to the extent Additional Securities are issued by
the Trust pursuant to the terms of this Agreement, (iii) the Company shall
deposit such Debentures in the Trust in conjunction with the consummation of
the sale of the Preferred Securities to the Underwriters contemplated hereby
and (iv) the Company and The Bank of New York, as Guarantee Trustee, shall
enter into a Guarantee Agreement in substantially the form of the Form of the
Preferred Securities Guarantee attached as Exhibit 4.19 of the Registration
Statement referred to below (the "Guarantee") for the benefit of holders from
time to time of the Preferred Securities.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Trust hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective number of Firm
Securities set forth below opposite their names at a purchase price per
Preferred Security of $25.00; provided, that the Company shall pay the
Underwriters' Compensation (as defined in the Prospectus Supplement) equal to
$.7875 per Preferred Security, or $.50 per Preferred Security for sales of
10,000 or more Preferred Securities to a single purchaser:
Number of shares of
Name Firm Securities
- ----------------------------------------------- ---------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................................. 1,644,000
Dean Witter Reynolds Inc....................... 1,644,000
PaineWebber Incorporated....................... 1,644,000
Prudential Securities Incorporated............. 1,644,000
Smith Barney Inc............................... 1,644,000
Bear, Stearns & Co. Inc........................ 120,000
Alex. Brown & Sons Incorporated ............... 120,000
Cowen & Company................................ 120,000
Dain Bosworth Incorporated..................... 120,000
Dillon, Read & Co. Inc......................... 120,000
Donaldson, Lufkin & Jenrette Securities
Corporation................................... 120,000
A.G. Edwards & Sons, Inc....................... 120,000
EVEREN Securities Inc.......................... 120,000
Morgan Stanley & Co. Incorporated.............. 120,000
The Ohio Company............................... 120,000
Oppenheimer & Co., Inc......................... 120,000
Piper Jaffray Inc.............................. 120,000
Raymond James & Associates Inc................. 120,000
The Robinson-Humphrey Company, Inc............. 120,000
Tucker Anthony Incorporated.................... 120,000
Wheat, First Securities, Inc................... 120,000
Advest, Inc.................................... 60,000
Robert W. Baird & Co. Incorporated............. 60,000
J.C. Bradford & Co............................. 60,000
JW Charles Securities, Inc..................... 60,000
Craigie Incorporated........................... 60,000
Crowell, Weedon & Co........................... 60,000
Davenport & Co. of Virginia, Inc............... 60,000
Fahnestock & Co. Inc........................... 60,000
First Albany Corporation....................... 60,000
Gibraltar Securities Co........................ 60,000
Crunta1 & Co., Incorporated.................... 60,000
J.J.B. Hilliard, W.L. Lyons, Inc............... 60,000
Interstate/Johnson Lane Corporation............ 60,000
Janney Montgomery Scott Inc.................... 60,000
Josephthal Lyon & Ross Incorporated............ 60,000
Kennedy, Cabot & Co............................ 60,000
Legg Mason Wood Walker, Incorporated........... 60,000
McDonald & Company Securities, Inc............. 60,000
McGinn, Smith & Co., Inc....................... 60,000
Mesirow Financial, Inc......................... 60,000
Morgan Keegan & Company, Inc................... 60,000
David A. Noyes & Company....................... 60,000
Rauscher Pierce Refsnes, Inc................... 60,000
Roney & Co., LLC............................... 60,000
Scott & Stringfellow, Inc...................... 60,000
Stifel, Nicolaus & Company,
Incorporated................................. 60,000
Stone & Youngberg.............................. 60,000
Sutro & Co. Incorporated....................... 60,000
US Clearing Corp............................... 60,000
Wedbush Morgan Securities...................... 60,000
Yamaichi International (America), Inc.......... 60,000
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Total 12,000,000
==========
On the basis of the representations and warranties contained in
this Agreement, and subject to its terms and conditions, the Trust agrees to
sell to the Underwriters the Additional Securities, and the Underwriters shall
have a one-time right to purchase, severally and not jointly, all or a part of
the Additional Securities at the purchase price per Preferred Security listed
above. Additional Securities may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Securities. If any Additional Securities are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Securities (subject to such adjustments to eliminate fractional
securities as you may determine) that bears the same proportion to the total
number of Additional Securities to be purchased as the amount of Firm
Securities set forth above opposite the name of such Underwriter bears to the
total amount of Firm Securities.
The Underwriters will pay for the Firm Securities upon delivery
thereof at the offices of Merrill Lynch, Pierce, Fenner & Smith Incorporated
in New York City, and payment of the purchase price for the Firm Securities
shall be made at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, Los
Angeles, at 10:00 a.m. (New York time) on November 13, 1996, or at such other
time, not later than 5:00 p.m. (New York time) on November 18, 1996, as shall
be designated by the Manager. The time and date of such payment and delivery
are hereinafter referred to as the "Closing Date."
The Underwriters will pay for any Additional Securities upon
delivery thereof at the offices of Merrill Lynch, Pierce, Fenner & Smith
Incorporated in New York City, and payment of the purchase price for the
Additional Securities shall be made at the offices of Skadden, Arps, Slate,
Meagher & Flom LLP, Los Angeles, at 10:00 a.m. (New York time), on such date
(which may be the same as the Closing Date but shall in no event be earlier
than the Closing Date nor later than the date ten business days after the
giving of the notice hereinafter referred to) as shall be designated in a
written notice from the Manager to the Company of our determination, on behalf
of the Underwriters, to purchase an aggregate number, specified in said
notice, of Additional Securities, as shall be designated in writing by us.
Such notice of determination to exercise the option to purchase Additional
Securities and of the designated Option Closing Date (defined below) may be
given by the Manager at any time during the 30 days after the date of this
Agreement. The designated time and date of such payment and delivery are
hereinafter referred to as the "Option Closing Date."
The Preferred Securities shall have the terms set forth in the
Prospectus dated October 31, 1996, and the Prospectus Supplement dated
November 7, 1996, including the following:
Terms of Preferred Securities
Aggregate Number of
Firm Securities: 12,000,000
Aggregate Number of
Additional Securities: 1,800,000
Purchase Price: $25.00 per share
Underwriters' Compensation: $.7875 per share, or $.50 for
sales of 10,000 or more
shares to a single purchaser
Closing Date: November 13, 1996
Form: Book-entry only
Lock-Up Securities and
Lock-Up Period: Debt securities with a maturity of
more than one year: the earlier to
occur of the termination of
trading restrictions or the Closing
Date; Preferred Securities, and
any equity security substantially
similar to the Preferred
Securities: 30 days from the date
hereof.
Each of the Trust and the Company hereby agrees that, without our
prior written consent, it will not, directly or indirectly, offer, sell,
contract to sell or grant any option to purchase or otherwise dispose of any
shares of the securities listed above as "Lock-Up Securities," or any
securities convertible into or exchangeable for Lock-Up Securities, for the
period listed above as the "Lock-Up Period" in respect of such Lock-Up
Securities; provided, however, that such restriction shall not affect the
ability of the Trust, the Company or its subsidiaries to take any such action
(i) as a consequence of obligations under securities outstanding prior to the
date hereof, (ii) in connection with any employee benefit or incentive plans
of the Company or its subsidiaries or (iii) in connection with the offering of
the Preferred Securities contemplated hereby.
All provisions contained in the document entitled SunAmerica
Capital Trusts and SunAmerica Inc. Underwriting Agreement Standard Provisions
(Preferred Securities) dated September 29, 1995, (the "Standard Provisions") a
copy of which is attached hereto, are herein incorporated by reference in
their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein, except that
(i) if any term defined in such document is otherwise defined herein, the
definition set forth herein shall control, (ii) all references in such
document to, and all provisions in such document relating to, a type of
agreement that has not been entered into in connection with the transactions
contemplated hereby shall not be deemed to be a part of this Agreement and
(iii) all references to "Additional Securities" and "Option Closing Date" and
all provisions related to the grant of an over-allotment option to
Underwriters hereunder shall not be deemed to be a part of this Agreement in
the event that an over-allotment option is not so granted hereby.
The term "Subsidiaries" as defined in the Standard Provisions
shall be amended to now include and mean only SunAmerica Life Insurance
Company, Anchor National Life Insurance Company, Resources Trust Company and
Ford Life Insurance Company.
The Company will pay all expenses incident to the performance of
its obligations under this Agreement and will pay the expenses of printing all
documents relating to the offering and of the mailing and delivering of copies
thereof to the Underwriters and any fees charged by investment rating agencies
for rating the Preferred Securities.
Each of the Company and the Trust recognizes and acknowledges for
all purposes of this Agreement that the only information relating to any
underwriter furnished to the Company or the Trust in writing by such
Underwriter through the Manager 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 statement thereunder regarding service
marks of Merrill Lynch & Co., Inc.; the third sentence of the first paragraph
under the caption "Risk Factors -- Listing of Preferred Securities; Trading
Prices" in the Prospectus Supplement; and the names of the Underwriters, the
second paragraph, the third sentence of the sixth paragraph and the second
sentence of the seventh paragraph, in each case under the caption
"Underwriting" in the Prospectus Supplement.
Please confirm your agreement by having an authorized officer sign
a copy of this Agreement in the space set forth below.
Very truly yours,
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.,
Acting severally on behalf of themselves and the several Underwriters named
herein
By: Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: /s/ Mathew M. Pendo
-----------------------------------------
Name: Mathew M. Pendo
Title: Director
Accepted:
SUNAMERICA CAPITAL TRUST III,
a Delaware statutory business trust
By: SUNAMERICA INC.,
Sponsor
By: /s/ James R. Belardi
-----------------------------------------
Name: James R. Belardi
Title: Executive Vice President
SUNAMERICA INC.
By: /s/ James R. Belardi
-----------------------------------------
Name: James R. Belardi
Title: Executive Vice President
SUNAMERICA CAPITAL TRUSTS AND
SUNAMERICA INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(PREFERRED SECURITIES)
September 29, 1995
From time to time SunAmerica Inc., a Maryland corporation (the
"Company") and one or more statutory business trusts entitled "SunAmerica
Capital Trust [____]" designated therein (the "Trust"), may enter into one or
more underwriting agreements that provide for the sale of designated
securities to the several underwriters named therein. The standard provisions
set forth herein may be incorporated by reference in any such underwriting
agreement (an "Underwriting Agreement"). The Underwriting Agreement,
including the provisions incorporated therein by reference, is herein referred
to as this Agreement. Terms defined in the Underwriting Agreement are used
herein as therein defined.
The Trust and the Company have filed with the Securities and
Exchange Commission (the "Commission") a registration statement, including a
prospectus, relating to the Preferred Securities, the Debentures and the
Guarantee and have filed with, or transmitted for filing to, or shall promptly
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the
Preferred Securities, the Debentures and the Guarantee pursuant to Rule 424
under the Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means such registration statement, including the
exhibits thereto, as amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Preferred Securities, the Debentures
and the Guarantee, together with the Basic Prospectus. As used herein, the
terms "Basic Prospectus," "Prospectus" and "preliminary prospectus" shall
include in each case the documents, if any, incorporated by reference therein.
The terms "supplement" and "amendment" or "amend" as used herein shall include
all documents deemed to be incorporated by reference in the Prospectus that
are filed subsequent to the date of the Basic Prospectus by the Trust or the
Company with the Commission pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
1. Representations and Warranties. The Company
represents and warrants to each of the Underwriters that:
(a) The Registration Statement (including the most
recent post-effective amendment thereto, if any) has been declared
effective by the Commission; no stop order suspending the effectiveness of
the Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Registration Statement, since the
later of the date it became effective and the date of the most recent
post-effective amendment, if any, will not fail to reflect any facts or events
which individually or in the aggregate represent a fundamental change in the
information set forth in the Registration Statement as of such date, (iii) the
Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this Section 1(b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Trust or the Company in writing by such
Underwriter through the Manager expressly for use therein.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Maryland, with corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as described
in the Registration Statement and Prospectus; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings or business affairs of the Company and its subsidiaries, considered
as one enterprise.
(d) Each of SunAmerica Life Insurance Company, First
SunAmerica Life Insurance Company, Anchor National Life Insurance Company,
SunAmerica Asset Management Corp., Resources Trust Company, Royal Alliance
Associates, Inc. and SunAmerica Securities, Inc. (together, the
"Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own, lease and operate
its properties and to conduct its business as presently conducted and as
described in the Registration Statement and Prospectus, and is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries, considered as one enterprise; and
all of the issued and outstanding capital stock of each Subsidiary has been
duly authorized and validly issued, is fully paid and nonassessable and is
owned (except for directors qualifying shares) directly or through
subsidiaries, by the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(e) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Act, is and will be
treated as a "grantor trust" for Federal income tax purposes under existing
law, has the business trust power and authority to conduct its business as
presently conducted and as described in the Registration Statement and
Prospectus, and is not required to be authorized to do business in any other
jurisdiction.
(f) The Trust and the Company have taken all business trust
and corporate action necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement has been validly executed
and delivered by each of the Trust and the Company.
(g) No consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Trust or the Company of its obligations under this
Agreement, or the issuance and/or sale of the Preferred Securities, the
Debentures and the Guarantee, except such as may be required by the securities
or Blue Sky laws or insurance securities laws of the various states in
connection with the offer and sale of the Preferred Securities.
(h) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Registration Statement and Prospectus
(except for subsequent issuances, if any, pursuant to reservations, stock
option agreements, employee benefit plans or the exercise of convertible
securities which may be referred to in the Registration Statement and
Prospectus); all of the issued and outstanding shares of capital stock have
been duly authorized and validly issued and are fully paid, nonassessable and
not subject to any preemptive or similar rights.
(i) As of the Closing Date, the Trust Securities will have
been duly authorized by the Declaration and (x) when the Preferred Securities
are issued in accordance with the terms of this Agreement and delivered to and
paid for by the Underwriters and (y) the Common Securities are issued against
payment therefor as provided in the Declaration, such Trust Securities will be
duly and validly issued and (subject to the terms of the Declaration) will be
fully paid and nonassessable undivided beneficial interests in the assets of
the Trust, not subject to any preemptive or similar rights, and will conform
to all statements relating thereto contained in the Registration Statement and
Prospectus. Holders of Trust Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
(j) As of the Closing Date, the Declaration will have been
duly authorized, executed and delivered by the Company and the trustees of the
Trust (the "Trust Trustees") and will be a valid and binding obligation of the
Company and the Trust Trustees, enforceable against the Company and the Trust
Trustees in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights and remedies generally
and to general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity).
(k) The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended, and, as of the Closing Date,
assuming due authorization, execution and delivery by the Trustee
thereunder, of the Indenture, the Supplemental Indenture and the
Debentures, the Indenture (as so supplemented) and the Debentures will be
valid and binding agreements of the Company, enforceable in accordance with
their terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability;
and the Indenture and the Debentures will conform in all respects to
statements relating thereto contained in the Registration Statement and the
Prospectus.
(l) None of the Trust, the Company nor any of the
Subsidiaries is in violation of its respective Declaration, charter or bylaws,
as applicable, or in default in the performance of any material obligation,
agreement, covenant or condition contained in any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Trust,
the Company or any of the Subsidiaries is a party or by which any of them may
be bound, or to which any of the property or assets of the Trust, the Company
or of any of the Subsidiaries is subject, or in violation of any applicable
law, administrative regulation or administrative or court order or decree,
which violation or default would, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or the earnings or
business affairs of the Trust, the Company and its subsidiaries, considered as
one enterprise; and the execution, delivery and performance of this Agreement,
and the consummation of the transactions contemplated herein and in the
Prospectus will not conflict with or constitute a breach of, or a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Trust, the Company or any of
the Subsidiaries pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Trust, the Company or
any of the Subsidiaries is a party or by which any of them may be bound, or to
which any of the property or assets of the Trust, the Company or any of the
Subsidiaries is subject, except for a conflict, breach, default, lien, charge
or encumbrance which would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of the
Trust, the Company and its subsidiaries considered as one enterprise, nor will
such action result in any violation of the provisions of the respective
Declaration, charter or bylaws of the Trust, the Company or any of the
Subsidiaries, as applicable, or any applicable law, administrative regulation
or administrative or court decree.
(m) There is no action, suit, or proceeding before or by any
court or governmental agency or body, domestic or foreign, pending against or,
to the knowledge of the Company, threatened against or affecting any of the
Trust, the Company or any subsidiaries of the Company, or any of their
respective assets or properties, which is required to be disclosed in the
Registration Statement or the Prospectus (other than as disclosed therein),
or which is reasonably likely to result in any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of
the Trust or the Company and its subsidiaries, considered as one enterprise,
or which would be reasonably likely to materially and adversely affect a
material portion of the properties or assets thereof or which is reasonably
likely to materially and adversely affect the consummation of this Agreement;
all pending legal or governmental proceedings to which the Trust or the
Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement or the Prospectus, including ordinary routine
litigation incidental to the business of the Trust or the Company or any of
its subsidiaries, are, considered in the aggregate, not material; and there are
no contracts or documents of the Trust or the Company or any of its
subsidiaries which are required to be filed as exhibits to the Registration
Statement or Prospectus by the Securities Act, the Exchange Act or the rules
and regulations promulgated thereunder, which have not been filed.
(n) Price Waterhouse LLP, the accountants who certified the
financial statements and supporting schedules of the Company included or
incorporated by reference in the Registration Statement and Prospectus, are
independent public accountants with respect to the Trust and the Company and
the subsidiaries of the Company as required by the Securities Act and the
rules and regulations promulgated thereunder.
(o) The financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus present
fairly the financial position of the Company and the consolidated subsidiaries
of the Company as of the dates indicated and the results of their operations
for the periods specified; except as otherwise stated in the Registration
Statement and Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis; the ratios of earnings to fixed charges and earnings to
combined fixed charges and preferred stock dividends, included in the
Registration Statement or Prospectus have been calculated in compliance with
Item 503(d) of Regulation S-K of the Commission; and the supporting schedules
included or incorporated by reference in the Registration Statement or
Prospectus present fairly the information required to be included therein.
(p) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as otherwise
stated or contemplated therein, (i) there has been no material adverse change
and no development involving a prospective material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of
the Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) there have been no
transactions entered into by the Company or any of the Subsidiaries which are
material to the Company and its subsidiaries, considered as one enterprise,
other than those entered into in the ordinary course of business and (iii)
except for regular quarterly dividends, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(q) The Trust, the Company and the Subsidiaries possess such
certificates, authorizations or permits issued by the appropriate state or
federal regulatory agencies or bodies as are necessary to conduct the business
as now conducted by them and as described in the Registration Statement or
Prospectus, except where the failure to so possess such certificates,
authorizations or permits would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of the
Trust or the Company and its subsidiaries, considered as one enterprise; and
none of the Trust, the Company nor any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, is
reasonably likely to have a material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of the Trust or
the Company and its subsidiaries, considered as one enterprise.
(r) Neither the Trust nor the Company is an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(s) None of the Trust, the Company or any of their
affiliates is presently doing business with the government of Cuba or with any
person or affiliate located in Cuba.
2. Public Offering. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective
portions of the Preferred Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Preferred Securities are set forth in the Prospectus.
3. Purchase and Delivery. Payment for the Preferred Securities
to be purchased by the Underwriters on the Closing Date or the Option Closing
Date, as the case may be, shall be made by certified or official bank check or
checks payable to the order of the Trust in New York Clearing House or similar
next-day funds at the time and place set forth in the Underwriting Agreement,
upon delivery to the Manager for the respective accounts of the several
Underwriters of the Preferred Securities in certificated form, registered in
such names and in such denominations as the Manager shall request in writing
not less than one full business day prior to the date of delivery, with any
transfer taxes payable in connection with the transfer of the Preferred
Securities to the Underwriters duly paid.
4. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have occurred any
material adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations, of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus.
(c) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in clause (b) above and to the effect that
the representations and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date and that the Trust and the Company
have complied with all of the agreements and satisfied all of the obligations
on their part to be performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date
opinions of Piper & Marbury, L.L.P., Maryland counsel for the Company, Susan
L. Harris, Esq., Vice President and General Counsel--Corporate Affairs for the
Company, Davis Polk & Wardwell, special counsel for the Company, and Richards,
Layton & Finger, Delaware counsel for the Trust, each dated the Closing Date,
to the effect set forth in Exhibits A, B, C and D, respectively. In giving
such opinion, (i) Ms. Harris may rely, as to matters governed by laws other
than the laws of the State of California and the federal law of the United
States of America, on an opinion or opinions of Davis Polk & Wardwell, Piper &
Marbury and Richards, Layton & Finger, (ii) Davis Polk & Wardwell may rely, as
to matters governed by laws other than the laws of the State of New York and
the federal law of the United States of America, on an opinion or opinions of
Piper & Marbury and Richards, Layton & Finger and (iii) Richards, Layton &
Finger may rely, as to matters governed by laws other than the State of
Delaware, on an opinion or opinions of Piper & Marbury and Davis Polk &
Wardwell, in each case so long as such opinion shall be dated the Closing Date
and in form and substance satisfactory to the Manager, and shall expressly
permit the Underwriters to rely thereon as if such opinion were addressed to
Underwriters.
(e) The Manager shall have received on the Closing Date an
opinion of special counsel for the Underwriters (the selection of whom shall
be approved by the Company), dated the Closing Date, to the effect set forth
in paragraphs (i) and (ii) in Exhibit A, paragraphs (i) through (iv) and (vi)
through (viii) in Exhibit C and paragraphs (i) through (v) in Exhibit D. In
giving such opinion, such counsel may rely, as to matters governed by laws
other than the federal law of the United States of America, on an opinion or
opinions of local counsel satisfactory to the Manager, so long as each such
opinion shall be dated the Closing Date and in form and substance satisfactory
to the Manager, and shall expressly permit the Underwriters to rely thereon as
if such opinion were addressed to Underwriters.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to the
Manager, from the Company's independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into
the Prospectus.
(g) The Manager shall have received a certificate from The
Bank of New York and The Bank of New York (Delaware), as Trust Trustees, dated
the Closing Date and signed by appropriate officers of such Trust Trustees,
containing statements and information substantially in the form of Exhibit E
hereto.
(h) The Preferred Securities of the Trust shall have been
approved for listing on the New York Stock Exchange upon notice of issuance.
(i) On the Closing Date, (i) the Preferred Securities shall
have a rating of at least "Baa2" from Moody's Investors Service, Inc. and at
least "A-" from Standard & Poor's Corporation as evidenced in a letter from
such rating agencies or by other evidence satisfactory to the Manager and (ii)
no securities of the Company or of any other SunAmerica Capital Trust that is
(x) organized in substantially the form of, and for substantially the same
purpose as, the Trust and (y) whose common equity capital is wholly-
owned by the Company or its subsidiaries (each a "SunAmerica Trust") shall
have been downgraded or placed on any "watch list" for possible downgrading by
any nationally recognized statistical rating organization.
5. The several obligations of the Underwriters to purchase
Additional Securities hereunder are subject to delivery to the Manager on the
Option Closing Date of such opinions, certificates and documents contemplated
by this Section 4 as such Manager shall reasonably request relating to the
issuance of the Additional Securities.
(a) Covenants of the Company. In further consideration
of the agreements of the Underwriters contained herein, the Company
covenants as follows:
(b) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto or to the Registration Statement as
the Manager may reasonably request.
(c) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Preferred Securities, the
Debentures or the Guarantee, to furnish to the Manager a copy of each such
proposed amendment or supplement and not to file any such proposed amendment or
supplement to which the Manager reasonably objects.
(d) If, during such period after the first date of the
public offering of the Preferred Securities as the Prospectus is required by
law to be delivered in connection with sales by an Underwriter or dealer, any
event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters, and to the dealers (whose
names and addresses the Manager will furnish to the Company) to which
Preferred Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealer upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law.
(e) To endeavor to qualify the Preferred Securities for
offer and sale under the securities or Blue Sky laws or insurance securities
laws of such jurisdictions as the Manager shall reasonably request and to pay
all expenses (including fees and disbursements of counsel) in connection with
such qualification and in connection with any review of the offering of the
Preferred Securities by the National Association of Securities Dealers, Inc.
(f) To make generally available to the security holders of
the Trust and the Company and to the Manager as soon as practicable an earning
statement covering a twelve month period beginning on the first day of the
first full fiscal quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder.
6. 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.
Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities, joint or several (including, without
limitation, any legal or other expenses reasonably incurred by any Underwriter
or any such controlling person in connection with defending or investigating
any such action or claim), caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Trust and the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information furnished to the Trust and the Company by any
Underwriter in writing through the Manager expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting such losses, claims, damages or liabilities purchased
Offered Securities, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented, if the Trust and the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to such purchase, and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to
such losses, claims, damages or liabilities. This indemnity will be in
addition to any liability which the Company may otherwise have.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the (i) the Trust, its Trust Trustees, its
officers who sign the Registration Statement and each person, if any, who
controls the Trust within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act and (ii) the Company, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, in each such case to the same extent as
the foregoing indemnity from the Company to such Underwriter, but only to the
extent that any untrue statement or omission or alleged untrue statement or
omission was made in reliance upon and in conformity with information
furnished to the Trust or the Company by any Underwriter in writing through
the Manager expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto. This
indemnity will be in addition to any liability which the Underwriters may
otherwise have.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses or
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager,
in the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first or second
paragraph in this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Trust and the Company on the one hand and
the Underwriters on the other hand from the offering of the Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Trust and the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by
the Trust and the Company on the one hand and the Underwriters on the other
hand in connection with the offering of the Preferred Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Preferred Securities (before deducting expenses) received by
the Trust and the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Preferred Securities. The relative fault of the Trust and the
Company on the one hand and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Trust or the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant to
this Section 6 are several in proportion to the respective principal amounts
of Preferred Securities purchased by each of such Underwriters and not joint.
The Trust, the Company and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to
in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Preferred Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 6 and the representations and warranties of the Trust and the Company
contained herein shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Trust, its Trust Trustees or any person
controlling the Trust, the Company, its directors or officers or any person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
7. Termination. This Agreement shall be subject to
termination, by notice given by the Manager to the Trust and the Company, if
(a) after the execution and delivery of the Underwriting Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, the New York Stock Exchange
or the American Stock Exchange, (ii) trading of any securities of the Company
or of any SunAmerica Trust shall have been suspended on any exchange or in any
over-the-counter market, (iii) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity
or crisis that, in the judgment of the Manager, is material and adverse, or
(iv) a general moratorium on commercial banking activities in New York shall
have been declared by either federal or New York State authorities, and (b) in
the case of any of the events specified in clauses (a)(i) through (iii), such
event, singly or together with any other such event, makes it, in the judgment
of the Manager, impracticable to market the Preferred Securities on the terms
and in the manner contemplated in the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date or the
Option Closing Date, as the case may be, any one or more of the Underwriters
shall fail or refuse to purchase Preferred Securities that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of
Preferred Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Preferred Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number
of Preferred Securities set forth opposite their respective names above bears
to the aggregate number of Preferred Securities set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as the
Manager may specify, to purchase the Preferred Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Preferred
Securities that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 8 by a number in excess of
one-ninth of such number of Preferred Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Preferred Securities to be
purchased on such date and the aggregate number of Preferred Securities
with respect to which such default occurs is more than one-tenth of the
aggregate number of Preferred Securities to be purchased on such date, and
arrangements satisfactory to the Manager and the Company for the purchase
of such Preferred Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case either the
Manager or the Company shall have the right to postpone the Closing Date
but in no event for longer 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 Option
Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Preferred Securities to be purchased on such date and the
aggregate number of Preferred Securities with respect to which such default
occurs is more than one-tenth of the aggregate number of Preferred
Securities to be purchased on such date, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to
purchase Preferred Securities to be purchased on such date or (ii) purchase
not less than the number of Preferred Securities that such non-defaulting
Underwriters would have been obligated to purchase on such date in the
absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Trust or the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Trust or the Company shall be unable to
perform its obligations under this Agreement, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering of the
Preferred Securities. Nothing in the foregoing sentence shall limit the
Company's obligations to pay expenses as provided in Section 5.
9. Miscellaneous. The Underwriting Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
10. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
11. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original; but such counterparts
shall together constitute but one and the same agreement.
Exhibit A
Opinion of Maryland Counsel for the Company
The opinion of Piper & Marbury, Maryland counsel for the
Company, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement, shall be limited to the laws of the State of Maryland and shall be
to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws under the State of
Maryland; and the Company has the corporate power under the laws of the State
of Maryland and under its charter to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus;
(ii) the Underwriting Agreement, the Declaration, the
Indenture, the Debentures and the Guarantee have been duly authorized,
executed and delivered by the Company; and
(iii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Declaration, the Indenture, the Debentures and the Guarantee
will not contravene any provision of any material applicable law of the State
of Maryland or the articles of incorporation or by-laws of the Company
(excluding the securities or Blue Sky laws of the State of Maryland, as to
which such counsel need not express any opinion).
Exhibit B
Opinion of Counsel for the Company
The opinion of Susan L. Harris, Vice President and General
Counsel--Corporate Affairs of the Company, to be delivered pursuant to Section
4(d) of the Underwriting Agreement shall be to the effect that:
(i) to the best of such counsel's knowledge and information,
the Company is duly qualified as a foreign corporation, to transact business
and in good standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify or be in good standing would
not have a material adverse effect on the condition, financial or otherwise, or
the earnings or business affairs of the Company and its subsidiaries, taken
as a whole;
(ii) each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation and has the corporate power and authority to own, lease
and operate its properties and to conduct its business as presently conducted
and as described in the Registration Statement and Prospectus; nothing has
come to the attention of such counsel to lead such counsel to believe that any
of SunAmerica Life Insurance Company, Anchor National Life Insurance Company
or SunAmerica Asset Management Corp. is not duly qualified as a foreign
corporation to transact business or is not in good standing in each
jurisdiction in which such qualification is required, except where the failure
to so qualify or be in good standing would not have a material adverse effect
on the condition, financial or otherwise, or the earnings or business affairs
of the Company and its subsidiaries considered as one enterprise; to the best
of such counsel's knowledge and information, all of the issued and outstanding
capital stock of each Subsidiary is owned (except for directors qualifying
shares), directly or through subsidiaries, by the Company, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity;
(iii) to the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes, leases
or other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed as exhibits thereto, the descriptions
thereof or references thereto are correct 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 Trust or the Company and
its subsidiaries considered as one enterprise;
(iv) to the best of such counsel's knowledge and information,
the execution and delivery of the Underwriting Agreement, the Declaration, the
Indenture, the Debentures and the Guarantee and the consummation of the
transactions contemplated herein and in the Registration Statement and
Prospectus will not conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Trust, the Company or any of the
Subsidiaries pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Trust, the Company or
any of the Subsidiaries is a party or by which any of them may be bound, or to
which any of the property or assets of the Trust, the Company or any of the
Subsidiaries is subject, except for a conflict, breach, default, lien, charge
or encumbrance which would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of the
Trust or the Company and its subsidiaries considered as one enterprise nor
will such action result in any violation of the provisions of the respective
Declaration, charter or by-laws of the Trust, the Company and the
Subsidiaries, as applicable, or any material applicable law, administrative
regulation or administrative or court decree;
(v) to the best of such counsel's knowledge and information,
no consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the Trust or
the Company of its obligations under the Underwriting Agreement, or the
issuance and sale of the Preferred Securities except such as may be required
by the securities or Blue Sky laws or insurance securities laws of the various
states in connection with the offer and sale of the Preferred Securities;
(vi) to the best of such counsel's knowledge and information,
there are no legal or governmental proceedings pending or threatened or any
statutes, regulations, contracts, or other documents that are required to be
described in the Registration Statement or the Prospectus that are not
described as required;
(vii) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein, as to which such
counsel need not express any opinion) appeared on its face to be appropriately
responsive in all material respects to the requirements of the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (2)
believes that (except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein, as to which such
counsel need not express any belief, and except for the part of the
Registration Statement that constitutes the Form T-1 heretofore referred to)
each part of the Registration Statement, when such part became effective did
not, and as of the date such opinion is delivered, does not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
(3) is of the opinion that the Registration Statement and Prospectus
(except for financial statements, supporting schedules and other financial
data included or incorporated by reference therein, as to which such
counsel need not express any opinion, and except for the part of the
Registration Statement that constitutes the Form T-1 heretofore referred
to) appear on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder and (4) believes that (except for
financial statements, supporting schedules and other financial data
included or incorporated by reference therein, as to which such counsel
need not express any belief) the Prospectus as of the date such opinion is
delivered does not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading;
and
(viii) the Registration Statement is effective under the
Securities Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement is in effect under
the Securities Act, and no proceedings for such purpose are pending before or
threatened by the Commission.
With respect to the foregoing paragraph (vii), such counsel may
state that her opinion and belief are based upon her participation in the
preparation of the Registration Statement and Prospectus and any amendments,
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified.
Exhibit C
Opinion of Special Counsel for the Company
The opinion of Davis Polk & Wardwell, special counsel for the
Company, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement shall be to the effect that:
(i) the statements in the Prospectus under the captions
"Description of the Preferred Securities," "Description of the Junior
Subordinated Debentures" and "Description of the Preferred Securities
Guarantee", insofar as such statements constitute summaries of the legal
matters or documents referred to therein, have been reviewed by such counsel
and fairly summarize the matters referred to therein and the statements in the
Prospectus under the caption "Taxation" constitute in all material respects a
fair and accurate summary of the material United States federal income tax
consequences of the ownership and disposition of the Preferred Securities;
(ii) the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and, assuming due authorization, execution
and delivery by the Company and the Trustee thereunder of the Indenture, the
Supplemental Indenture, the Guarantee and the Debentures, each of the
Supplemental Indenture, Indenture (as so supplemented), the Guarantee and the
Debentures will be a valid and binding agreement of the Company, enforceable
in accordance with its terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) rights of acceleration and availability of equitable
remedies may be limited by equitable principles of general applicability;
(iii) the Preferred Securities, the Debentures and the
Guarantee conform in all material respects to the descriptions thereof
contained in the Prospectus and the Registration Statement;
(iv) neither the Trust nor the Company is an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(v) to the best of such Counsel's knowledge and information,
no consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the Trust or
the Company of its obligations under the Underwriting Agreement, or the
issuance and sale of the Preferred Securities, except such as may be required
by the securities or Blue Sky laws or insurance securities laws of the various
states in connection with the offer and sale of the Preferred Securities;
(vi) the statements in the Prospectus under the caption "Plan
of Distribution," insofar as such statements constitute summaries of the legal
matters or documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents or
proceedings and fairly summarize the matters referred to therein;
(vii) such counsel (1) believes that (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein and any of the documents incorporated by
reference therein, as to which such counsel need not express any belief, and
except for that part of the Registration Statement that constitutes the Form
T-1 heretofore referred to) each part of the Registration Statement, when such
part became effective did not, and as of the date such opinion is delivered,
does not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (2) is of the opinion that the Registration
Statement and Prospectus (except for financial statements, supporting
schedules and other financial data included or incorporated by reference
therein and any of the documents incorporated or deemed to be incorporated by
reference therein, as to which such counsel need not express any opinion, and
except for that part of the Registration Statement that constitutes the Form
T-1 heretofore referred to) appear on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder and (3)
believes that (except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein and any of the
documents incorporated or deemed to be incorporated by reference therein, as
to which such counsel need not express any belief) the Prospectus as of the
date such opinion is delivered does not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and
(viii) the Registration Statement is effective under the
Securities Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement is in effect under
the Securities Act, and no proceedings for such purpose are pending before or
threatened by the Commission.
With respect to the foregoing paragraph (vii), such counsel may
state that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the documents incorporated by
reference) and upon review and discussion of the contents thereof (including
documents incorporated by reference) but are without independent check or
verification, except as specified.
Exhibit D
Opinion of Delaware Counsel for the Trust
The opinion of Richards, Layton & Finger, special counsel for
the Trust, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement shall be to the effect that:
(i) the Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Act and under the
Declaration and the Delaware Act has the business trust power and authority to
conduct its business as described in the Registration Statement and Prospectus;
(ii) assuming due authorization, execution and delivery of the
Declaration by the Company and the Trustees, the Declaration is a legal, valid
and binding agreement of the Company and the Trustees, enforceable against the
Company and the Trustees in accordance with its terms, except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance or other
similar laws relating to or affecting the rights and remedies of creditors
generally and (b) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law);
(iii) under the Declaration and the Delaware Act, the execution
and delivery of the Underwriting Agreement by the Trust, and the performance
by the Trust of its obligations thereunder, have been duly authorized by all
business trust action on the part of the Trust;
(iv) the Trust Securities have been duly authorized by the
Declaration and (x) when the Preferred Securities are issued in accordance
with the terms of the Underwriting Agreement and delivered to and paid for by
the Underwriters and (y) the Common Securities are issued against payment
therefor as provided in the Declaration, such Trust Securities will be duly
and validly issued and, subject to the qualifications set forth in such
opinion, will be fully paid and nonassessable undivided beneficial interests
in the assets of the Trust; the holders of Trust Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of the private corporations for profit
organized under the General Corporation Law of the State of Delaware;
In rendering such opinion, such counsel may note that
holders of Trust Securities may be obligated, pursuant to the Declaration, to
(i) provide indemnity and security in connection with and pay taxes or other
governmental charges arising from transfers of certificates for Trust
Securities and the issuance of replacement certificates for Trust Securities,
(ii) provide security and indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and remedies under
the Declaration and (iii) undertake as a party litigant to pay costs in any
suit for the enforcement of any right or remedy under the Declaration or
against the Property Trustee, to the extent provided in the Declaration. In
rendering such opinion such counsel may also note that the Company, in its
capacity as Sponsor and not in its capacity as a Holder, has undertaken
certain payment obligations as set forth in the Declaration; and
(v) under the Declaration and the Delaware Act, the issuance
of the Trust Securities is not subject to preemptive rights.
Exhibit E
TRUSTEES' CERTIFICATE
The Bank of New York, a New York banking corporation
("BONY-NY"), and The Bank of New York (Delaware), a Delaware banking
corporation ("BONY-DEL," and together with BONY-NY, the "Trustees"), each
hereby certifies that:
1. The [Declaration of Trust] [Amended and Restated Declaration
of Trust] of SunAmerica Capital Trust [_] (the "Trust"), dated as of _______
__, 199[_] (the "Declaration of Trust"), by and among SunAmerica Inc., a
Maryland corporation, as sponsor (the "Sponsor"), the Trustees and the other
parties thereto has been duly executed and delivered in the name and on
behalf of each of BONY-NY and BONY-DEL by ____________, its ___________,
and ____________, its __________, respectively.
2. Each person who, on behalf of each of the Trustees, executed
and delivered the [Declaration of Trust] [Amended and Restated Declaration of
Trust] was at the date thereof and is now duly elected, appointed or
authorized, qualified and acting as an officer or authorized signatory of such
Trustee and duly authorized to perform such act at the time of such act and
the signatures of such persons appearing on such documents are their genuine
signatures.
3. Attached hereto are (a) an extract from the By-laws of each
of the undersigned, duly adopted by its Board of Directors, respecting the
signing authority of the persons mentioned above in paragraph 2 above, and (b)
a letter from a Senior Executive Vice President of each of the undersigned
authorizing, pursuant to such By-laws, such signing authority, which By-laws
and letter at the date hereof are in full force and effect.
4. To the knowledge of the Trustees, without any independent
investigation, the statutory business trust created pursuant to [the
Declaration of Trust] [that certain original declaration of trust, dated as of
_______ __, 199[_], by and among the Sponsor, the Trustees and the other
parties thereto] (a) has conducted no business other than in connection with
the Registration Statement on Form S-3 (No. 33-[_________]) of the Sponsor,
the Trust and other trusts organized by the Sponsor (the "Registration
Statement") and (b) has no liabilities other than in connection with the
Registration Statement.
EXHIBIT 4.13
AMENDED AND RESTATED DECLARATION OF TRUST
OF
SUNAMERICA CAPITAL TRUST III
Dated as of November 13, 1996
TABLE OF CONTENTS(*)
(*) This Table of Contents does not constitute part of the Amended and
Restated Declaration of Trust and should not have any bearing upon
the interpretation of any of its terms or provisions.
Page
----
PARTIES............................................................ 1
RECITALS:
Recitals........................................................... 1
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain terms defined; other terms defined in the
Trust Indenture Act of 1939, as amended, or by
reference therein in the Securities Act of 1933,
as amended, to have the meanings assigned
therein.......................................... 2
Affiliate........................................ 2
Appointment Event................................ 2
Book Entry Interest.............................. 3
Business Day..................................... 3
Business Trust Act............................... 3
Certificate...................................... 3
Certificate of Trust............................. 3
Clearing Agency.................................. 3
Clearing Agency Participant...................... 3
Closing Date..................................... 3
Code............................................. 3
Commission....................................... 3
Common Security.................................. 4
Common Security Certificate...................... 4
Covered Person................................... 4
Debenture Trustee................................ 4
Debentures....................................... 4
Definitive Preferred Security
Certificates..................................... 4
Delaware Trustee................................. 4
Depositary Agreement............................. 4
Distribution..................................... 4
DTC.............................................. 4
Event of Default................................. 4
Exchange Act..................................... 4
Fiscal Year...................................... 4
Global Certificate............................... 5
Holder........................................... 5
Indemnified Person............................... 5
Indenture........................................ 5
Indenture Event of Default....................... 5
Investment Company............................... 5
Investment Company Act........................... 5
Legal Action..................................... 5
Liquidation Distribution......................... 5
Majority in liquidation amount of the Securities. 5
Option Closing Date.............................. 6
Original Declaration............................. 6
Paying Agent..................................... 6
Person........................................... 6
Preferred Guarantee.............................. 6
Preferred Security............................... 6
Preferred Security Beneficial Owner.............. 6
Preferred Security Certificate................... 6
Property Trustee................................. 6
Property Account................................. 6
Quorum........................................... 7
Regular Trustee.................................. 7
Related Party.................................... 7
Resignation Request.............................. 7
Responsible Officer.............................. 7
Rule 3a-5 or Rule 3a-7........................... 7
Securities....................................... 7
Securities Act................................... 7
66-2/3% in liquidation amount
of the Securities................................ 7
Special Regular Trustee.......................... 8
Sponsor or SunAmerica............................ 8
Successor Delaware Trustee....................... 8
Successor Property Trustee....................... 8
10% in liquidation amount of
the Securities................................... 8
Treasury Regulations............................. 8
Trustee or Trustees.............................. 8
Trust Indenture Act.............................. 9
Underwriting Agreement........................... 9
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act;
Application...................................... 9
SECTION 2.2 List of Holders of Preferred
Securities....................................... 9
SECTION 2.3 Reports by the Property Trustee.................. 10
SECTION 2.4 Periodic Reports to the Property
Trustee.......................................... 10
SECTION 2.5 Evidence of Compliance with
Conditions Precedent............................ 10
SECTION 2.6 Events of Default; Waiver....................... 10
SECTION 2.7 Disclosure of Information....................... 13
ARTICLE III
ORGANIZATION
SECTION 3.1 Name............................................ 13
SECTION 3.2 Office.......................................... 13
SECTION 3.3 Insurance of the Trust
Securities...................................... 13
SECTION 3.4 Purchase of Debentures.......................... 14
SECTION 3.5 Purpose......................................... 15
SECTION 3.6 Authority....................................... 15
SECTION 3.7 Title to Property of the Trust.................. 16
SECTION 3.8 Powers and Duties of the
Regular Trustees................................ 16
SECTION 3.9 Prohibition of Actions by Trust
and Trustees.................................... 19
SECTION 3.10 Powers and Duties of the
Property Trustee.............................. 20
SECTION 3.11 Delaware Trustee.............................. 23
SECTION 3.12 Certain Rights and Duties of the
Property Trustee.............................. 23
SECTION 3.13 Registration Statement and
Related Matters............................... 26
SECTION 3.14 Filing of Amendments to
Certificate of Trust.......................... 27
SECTION 3.15 Execution of Documents by
Regular Trustees.............................. 28
SECTION 3.16 Trustees Not Responsible for Recitals or
Issuance of Securities........................ 28
SECTION 3.17 Duration of Trust............................. 28
ARTICLE IV
SPONSOR
SECTION 4.1 Purchase of Common Securities
by Sponsor...................................... 28
SECTION 4.2 Expenses........................................ 28
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees;
Qualifications.................................. 29
SECTION 5.2 Appointment, Removal and
Resignation of Trustees......................... 32
SECTION 5.3 Vacancies Among Trustees........................ 35
SECTION 5.4 Effect of Vacancies............................. 35
SECTION 5.5 Meetings........................................ 35
SECTION 5.6 Delegation of Power............................. 36
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions................................... 36
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding
Securities...................................... 37
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust............................ 39
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.......................... 39
SECTION 9.2 Transfer of Certificates........................ 40
SECTION 9.3 Deemed Security Holders......................... 40
SECTION 9.4 Book Entry Interests............................ 41
SECTION 9.5 Notices to Holders of
Certificates.................................... 42
SECTION 9.6 Appointment of Successor
Clearing Agency................................. 42
SECTION 9.7 Definitive Preferred Securities
Certificates.................................... 42
SECTION 9.8 Mutilated, Destroyed, Lost or
Stolen Certificates............................. 43
ARTICLE X
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 10.1 Exculpation................................... 43
SECTION 10.2 Indemnification............................... 44
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year................................... 45
SECTION 11.2 Certain Accounting Matters.................... 45
SECTION 11.3 Banking....................................... 46
SECTION 11.4 Withholding................................... 46
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.................................... 47
SECTION 12.2 Meetings of the Holders of Securities; Action
by Written Consent............................ 48
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties
of Property Trustee........................... 50
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices....................................... 51
SECTION 14.2 Undertaking for Costs......................... 52
SECTION 14.3 Governing Law................................. 53
SECTION 14.4 Headings...................................... 53
SECTION 14.5 Partial Enforceability........................ 53
SECTION 14.6 Counterparts.................................. 53
SECTION 14.7 Intention of the Parties...................... 53
SECTION 14.8 Successors and Assigns........................ 54
SIGNATURES AND SEALS.............................................. 55
EXHIBIT A: CERTIFICATE OF TRUST
EXHIBIT B: TERMS OF THE PREFERRED SECURITIES
EXHIBIT C: TERMS OF THE COMMON SECURITIES
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
SunAmerica Capital Trust III
November 13, 1996
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated
and effective as of November 13, 1996 by the undersigned trustees (together
with all other Persons from time to time duly appointed and serving as
trustees in accordance with the provisions of this Declaration, the
"Trustees"), SunAmerica Inc., a Maryland corporation, as trust sponsor
("SunAmerica" or the "Sponsor"), and by the holders, from time to time, of
undivided beneficial interests in the assets of the Trust to be issued pursuant
to this Declaration.
WHEREAS, the Sponsor and the Trustees entered into a
Declaration of Trust dated as of August 31, 1995 (the "Original Declaration")
in order to establish a statutory business trust (the "Trust") under the
Business Trust Act (as hereinafter defined);
WHEREAS, the Certificate of Trust (the "Certificate of Trust")
of the Trust was filed with the office of the Secretary of State of the State
of Delaware on September 6, 1995;
WHEREAS, the Trustees and the Sponsor desire to continue the
Trust pursuant to the Business Trust Act for the purpose of, as described more
fully in Sections 3.3 and 3.4 hereof, (i) issuing and selling Preferred
Securities (as defined herein) representing undivided beneficial interests in
the assets of the Trust for cash and investing the proceeds thereof in
Debentures (as hereinafter defined) of SunAmerica issued under the Indenture
(as hereinafter defined) to be held as assets of the Trust and (ii) issuing
and selling Common Securities (as defined herein) representing undivided
beneficial interests in the assets of the Trust to SunAmerica in exchange for
cash and investing the proceeds thereof in additional Debentures issued under
the Indenture to be held as assets of the Trust; and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act, that
the Original Declaration be amended and restated in its entirety as provided
herein and that this Declaration constitute the governing instrument of such
business trust, the Trustees declare that all assets referred to in clauses
(i) and (ii) of the previous Whereas clause purchased by the Trust will be
held in trust for the benefit of the Holders (as defined herein) of the
Certificates (as defined herein) representing undivided beneficial interests
in the assets of the Trust issued hereunder, subject to the provisions of this
Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Amended and Restated Declaration of Trust (including Exhibits A, B
and C hereto (the "Exhibits")) as modified, supplemented or amended from time
to time;
(d) all references in this Declaration to Articles and
Sections and Exhibits are to Articles and Sections of and Exhibits to this
Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Appointment Event" means an event defined in the terms of the
Preferred Securities set forth in Exhibit B which entitles the Holders of a
Majority in liquidation amount of the Preferred Securities to appoint a
Special Regular Trustee.
"Book Entry Interest" means a beneficial interest in a Global
Certificate registered in the name of a Clearing Agency or a nominee thereof,
ownership and transfers of which shall be maintained and made through book
entries by such Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Certificate" means a Common Security Certificate or a
Preferred Security Certificate.
"Certificate of Trust" has the meaning set forth in the second
Whereas clause above.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting
as depository for the Preferred Securities and in whose name or in the name of
a nominee of that organization, shall be registered a Global Certificate and
which shall undertake to effect book entry transfers and pledges of the
Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means the Closing Date as specified in the
Underwriting Agreement, which date is also the date of execution and delivery
of this Declaration.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation. A reference to a specific section
((Sec.)) of the Code refers not only to such specific section but also to any
corresponding provision of any federal tax statute enacted after the date of
this Declaration, as such specific section or corresponding provision is in
effect on the date of application of the provisions of this Declaration
containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.1(b).
"Common Security Certificate" means a definitive certificate in
fully registered form representing a Common Security substantially in the form
of Annex I to Exhibit C.
"Covered Person" means (i) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or its
Affiliates, (ii) any officer, director, shareholder, employees,
representatives or agents of SunAmerica or its Affiliates and (iii) the
Holders from time to time of the Securities.
"Debenture Trustee" means The First National Bank of Chicago,
as trustee under the Indenture until a successor is appointed thereunder and
thereafter means such successor trustee.
"Debentures" means the series of Junior Subordinated Debentures
issued by SunAmerica under the Indenture to the Property Trustee and entitled
the "8.30% Junior Subordinated Debentures due 2045".
"Definitive Preferred Security Certificates" has the meaning
set forth in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section
5.1(a)(3).
"Depositary Agreement" means the agreement among the Trust, the
Property Trustee and DTC dated as of the Closing Date, as the same may be
amended or supplemented from time to time.
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" in respect of the Securities means an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Fiscal Year" has the meaning specified in Section 11.1.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee, or any employee or agent of the
Trust or its Affiliates.
"Indenture" means the Indenture dated as of March 15, 1995 (as
amended by the Supplemental Indenture dated as of October 28, 1996) between
SunAmerica and the Debenture Trustee as supplemented by the Fourth
Supplemental Indenture thereto dated as of November 13, 1996, pursuant to
which the Debentures are to be issued.
"Indenture Event of Default" means an event or condition
defined as an "Event of Default" with respect to the Debentures under Section
6.01(a) of the Indenture has occurred and is continuing.
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time or any successor legislation.
"Legal Action" has the meaning specified in Section 3.8(g).
"Liquidation Distribution" has the meaning set forth in
Exhibits B and C hereto establishing the terms of the Securities.
"Majority in liquidation amount of the Securities" means,
except as otherwise required by the Trust Indenture Act and except as provided
in the penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context
may require, Holder(s) of outstanding Preferred Securities or Common
Securities voting separately as a class, who are the record owners of a
relevant class of Securities whose liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) represents more than 50% of the liquidation amount of all
outstanding Securities of such class.
"Option Closing Date" means the Option Closing Date as
specified in the Underwriting Agreement.
"Original Declaration" has the meaning set forth in the first
WHEREAS clause above.
"Paying Agent" has the meaning specified in Section 3.10(i).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Guarantee" means the Guarantee Agreement to be dated
as of November 13, 1996 of SunAmerica in respect of the Preferred Securities.
"Preferred Security" has the meaning specified in Section
7.1(b).
"Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a definitive certificate
in fully registered form representing a Preferred Security substantially in
the form of Annex I to Exhibit B.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.1(c) and having the duties set forth for
the Property Trustee herein.
"Property Account" has the meaning specified in Section
3.10(c)(i).
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both such Regular Trustees.
"Regular Trustee" means any Trustee other than the Property
Trustee and the Delaware Trustee.
"Related Party" means any direct or indirect wholly owned
subsidiary of SunAmerica or any other Person which owns, directly or
indirectly, 100% of the outstanding voting securities of SunAmerica.
"Resignation Request" has the meaning specified in Section
5.2(d).
"Responsible Officer" means, with respect to the Property
Trustee, the chairman of the board of directors, the president, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Property Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Rule 3a-5" or "Rule 3a-7" means Rule 3a-5 or Rule 3a-7,
respectively, under the Investment Company Act or any successor rule
thereunder.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time or any successor legislation.
"66-2/3% in liquidation amount of the Securities" means, except
as otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context
may require, Holder(s) of outstanding Preferred Securities or Common
Securities, voting separately as a class, who are the record owners of a
relevant class of Securities whose liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) represents 66-2/3% or more of the liquidation amount of all
outstanding Securities of such class.
"Special Regular Trustee" means a Regular Trustee appointed by
the Holders of a Majority in liquidation amount of the Preferred Securities in
accordance with Section 5.2(a)(ii)(B).
"Sponsor" or "SunAmerica" means SunAmerica Inc., a Maryland
corporation, or any successor entity in a merger, in its capacity as sponsor
of the Trust.
"Successor Delaware Trustee" has the meaning specified in
Section 5.2(b)(ii).
"Successor Property Trustee" means a successor Trustee
possessing the qualifications to act as Property Trustee under Section 5.1(c).
"10% in liquidation amount of the Securities" means, except as
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context
may require, Holder(s) of outstanding Preferred Securities or Common
Securities, voting separately as a class, who are the record owners of a
relevant class of Securities whose liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) represents 10% or more of the liquidation amount of all
outstanding Securities of such class.
"Treasury Regulations" means the income tax regulations
including temporary and proposed regulations, promulgated under the Code by
the United States Treasury, as such regulations may be amended from time to
time (including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Underwriting Agreement" means the Underwriting Agreement dated
as of November 7, 1996 among the Trust, the Sponsor and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Dean Witter Reynolds Inc., PaineWebber
Incorporated, Prudential Securities Incorporated and Smith Barney Inc., as
representatives of the several underwriters named therein.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration and
shall, to the extent applicable, be governed by such provisions;
(b) if and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by Section
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control;
(c) the Property Trustee, to the extent permitted by
applicable law and/or the rules and regulations of the Commission, shall be
the only Trustee which is a trustee for the purposes of the Trust Indenture
Act; and
(d) the application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Preferred Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide the Property Trustee with such information as is
required under Section 312(a) of the Trust Indenture Act at the times and in
the manner provided in Section 312(a); and
(b) the Property Trustee shall comply with its obligations
under Section Section 310(b), 311 and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year, the Property Trustee
shall provide to the Holders of the Securities such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form, in the manner and
at the times provided by Section 313 of the Trust Indenture Act. The
Property Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee, the Commission and the Holders of
the Securities, as applicable, such documents, reports and information as
required by Section 314(a)(1)-(3) (if any) of the Trust Indenture Act and the
compliance certificates required by Section 314(a)(4) and (c) of the Trust
Indenture Act, any such certificates to be provided in the form, in the manner
and at the times required by Section 314(a)(4) and (c) of the Trust Indenture
Act (provided that any certificate to be provided pursuant to Section
314(a)(4) of the Trust Indenture Act shall be provided within 120 days of the
end of each Fiscal Year).
SECTION 2.5 Evidence of Compliance with
Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Declaration which
relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given pursuant to
Section 314(c) shall comply with Section 314(e) of the Trust Indenture Act.
SECTION 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(c), Holders of Preferred Securities
may, by vote of at least a Majority in liquidation amount of the Preferred
Securities (A) in accordance with the terms of the Preferred Securities,
direct the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee, or (B) on behalf of the Holders of all Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences; provided that if the Event of Default arises
out of an Indenture Event of Default:
(i) which is not waivable under the Indenture, the Event of
Default under this Declaration shall also not be waivable under this
provision; or
(ii) which requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures, or (2) each holder of
Debentures, the Event of Default under this Declaration may only be
waived by, in the case of clause (1) above, the vote of Holders of
Preferred Securities representing such specified percentage of the
aggregate liquidation amount of the Preferred Securities or, in the
case of clause (2) above, each Holder of Preferred Securities.
Upon such waiver, any such default shall cease to exist, and any Event of
Default with respect to the Preferred Securities arising therefrom shall be
deemed to have been cured for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default
with respect to the Preferred Securities or impair any right consequent
thereon.
(b) Subject to Section 2.6(c), Holders of Common Securities
may by vote of at least a Majority in liquidation amount of the Common
Securities, (A) in accordance with the terms of the Common Securities, direct
the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee or exercising any trust or power conferred
upon the Property Trustee or (B) on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the Event of Default arises
out of an Indenture Event of Default:
(i) which is not waivable under the Indenture, except where
the Holders of the Common Securities are deemed to have waived such
Event of Default under the Declaration as provided below, the Event
of Default under this Declaration shall also not be waivable; or
(ii) which requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (2) each holder of
Debentures, except where the holders of the Common Securities are
deemed to have waived such Event of Default under this Declaration as
provided below, the Event of Default under this Declaration may only
be waived by, in the case of clause (1) above, the vote of Holders of
Common Securities representing such specified percentage of the
aggregate liquidation amount of the Common Securities or, in the case
of clause (2) above, each holder of Common Securities; and
provided, further, that each Holder of Common Securities will be deemed to
have waived any Event of Default with respect to the Common Securities and its
consequences until all Events of Default with respect to the Preferred
Securities have been cured, waived by the Holders of Preferred Securities as
provided in this Declaration or otherwise eliminated and until all Events of
Default with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee will be deemed to be acting solely
on behalf of the Holders of the Preferred Securities and only the Holders of
the Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of this Declaration or the Securities. In the event
that any Event of Default with respect to the Preferred Securities is waived
by the Holders of Preferred Securities as provided in this Declaration, the
Holders of Common Securities agree that such waiver shall also constitute the
waiver of such Event of Default with respect to the Common Securities for all
purposes under this Declaration without any further act, vote or consent of the
Holders of the Common Securities. Subject to the foregoing provisions of this
Section 2.6(b), upon such waiver, any such default shall cease to exist and
any Event of Default with respect to the Common Securities arising therefrom
shall be deemed to have been cured for every purpose of this Declaration, but
no such waiver shall extend to any subsequent or other default or Event of
Default with respect to the Common Securities or impair any right consequent
thereon.
(c) The right of any Holder of Securities to receive payment
of Distributions on the Securities in accordance with this Declaration and the
terms of the Securities set forth in Exhibits B and C on or after the
respective payment dates therefor, or to institute suit for the enforcement of
any such payment on or after such payment dates, shall not be impaired without
the consent of such Holder.
(d) As provided in the terms of the Securities set forth in
Exhibits B and C hereto, a waiver of an Indenture Event of Default by the
Property Trustee at the written direction of the Holders of the Preferred
Securities constitutes a waiver of the corresponding Event of Default under
this Declaration in respect of the Securities.
SECTION 2.7 Disclosure of Information.
The disclosure of information as to the names and addresses of
the Holders of the Securities in accordance with Section 312 of the Trust
Indenture Act, regardless of the source from which such information was
derived, shall not be deemed to be a violation of any existing law, or any law
hereafter enacted which does not specifically refer to Section 312 of the
Trust Indenture Act, nor shall the Property Trustee be held accountable by
reason of mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust continued by this Declaration is named "SunAmerica
Capital Trust III" as such name may be modified from time to time by the
Regular Trustees following written notice to the Holders of Securities. The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
SunAmerica Inc., 1 SunAmerica Center, Los Angeles, California 90067-6022.
Upon ten days' written notice to the Holders, the Regular Trustees may change
the location of the Trust's principal office. The name of the registered agent
and office of the Trust in the State of Delaware is The Bank of New York
(Delaware), White Clay Center, Route 273, Newark, Delaware 19711, Attention:
Corporate Trust Administration. At any time, the Regular Trustees may
designate another registered agent and/or registered office.
SECTION 3.3 Issuance of the Trust Securities.
On November 7, 1996 the Sponsor, on behalf of the Trust and
pursuant to the Original Declaration, executed and delivered the Underwriting
Agreement. On the Closing Date and contemporaneously with the execution and
delivery of this Declaration, the Regular Trustees, on behalf of the Trust,
shall execute and deliver to (i) the underwriters named in the Underwriting
Agreement, a Global Certificate, registered in the name of the nominee of the
initial Clearing Agency as specified in Section 9.4, in an aggregate amount of
12,000,000 Preferred Securities having an aggregate liquidation amount of
$300,000,000, against receipt of the aggregate purchase price of such
Preferred Securities of $300,000,000, and (ii) the Sponsor, Common Securities
Certificates, registered in the name of the Sponsor, in an aggregate amount of
426,805 Common Securities having an aggregate liquidation amount of
$10,670,125, against receipt of the aggregate purchase price of such Common
Securities of $10,670,125. In the event and to the extent the overallotment
option granted by the Trust pursuant to the Underwriting Agreement is
exercised by such underwriters, on the Option Closing Date the Regular
Trustees, on behalf of the Trust, shall execute and deliver to such
underwriters a Global Certificate, registered in the name of the nominee of
the initial Clearing Agency as specified in Section 9.4, in an aggregate
amount of up to 1,800,000 Preferred Securities having an aggregate liquidation
amount of up to $45,000,000, against receipt of the aggregate purchase price
for such Preferred Securities of an amount equal to the aggregate liquidation
preference of the Preferred Securities being purchased.
SECTION 3.4 Purchase of Debentures.
On the Closing Date and contemporaneously with the execution
and delivery of this Declaration, the Regular Trustees, on behalf of the
Trust, shall purchase from the Sponsor with the proceeds received by the Trust
from the sale of the Securities on such date pursuant to Section 3.3, at a
purchase price of 100% of the principal amount thereof, Debentures, registered
in the name of the Property Trustee and having an aggregate principal amount
equal to $310,670,125, and, in satisfaction of the purchase price for such
Debentures, the Regular Trustee, on behalf of the Trust, shall deliver or
cause to be delivered to the Sponsor the sum of $310,670,125. In the event
the overallotment option granted by the Trust with respect to the Preferred
Securities pursuant to the Underwriting Agreement is exercised by the
underwriters named therein, on the Option Closing Date the Regular Trustees,
on behalf of the Trust, shall purchase from the Sponsor with the proceeds
received by the Trust from the sale of the Preferred Securities on such date
pursuant to Section 3.3, at a purchase price of 100% of the principal amount
thereof, additional Debentures, registered in the name of the Property Trustee
and having an aggregate principal amount of up to $45,000,000, and, in
satisfaction of the purchase price for such Debentures, the Regular Trustees,
on behalf of the Trust, shall deliver or cause to be delivered to the Sponsor
an amount equal to the aggregate principal amount of the Debentures being
purchased.
SECTION 3.5 Purpose.
The exclusive purposes and functions of the Trust are: (a)(i)
to issue and sell Preferred Securities for cash and use the proceeds of such
sales to acquire from SunAmerica Debentures issued under the Indenture having
an aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities so issued and sold; (ii) to enter into such agreements
and arrangements as may be necessary in connection with the sale of Preferred
Securities to the initial purchasers thereof (including the Underwriting
Agreement) and to take all action, and exercise such discretion, as may be
necessary or desirable in connection therewith and to file such registration
statements or make such other filings under the Securities Act, the Exchange
Act or state securities or "Blue Sky" laws as may be necessary or desirable in
connection therewith and the issuance of the Preferred Securities; and (iii)
to issue and sell Common Securities to SunAmerica for cash and use the
proceeds of such sale to purchase as trust assets an equal aggregate principal
amount of Debentures issued under the Indenture; and (b) except as otherwise
limited herein, to engage in only those other activities necessary or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets or at any time
while the Securities are outstanding, otherwise undertake (or permit to be
undertaken) any activity that would result in or cause the Trust to be treated
as anything other than a grantor trust for United States federal income tax
purposes.
SECTION 3.6 Authority.
Subject to the limitations provided in this Declaration and to
the specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee in accordance with its powers shall constitute the act of and
serve to bind the Trust. In dealing with the Trustees acting on behalf of the
Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to
rely conclusively on the power and authority of the Trustees as set forth in
this Declaration.
SECTION 3.7 Title to Property of the Trust.
Except as provided in Section 3.10 with respect to the
Debentures and the Property Account or unless otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of
the Trust, but shall have an individual undivided beneficial interest in the
assets of the Trust.
SECTION 3.8 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, authority
and duty to cause the Trust, and shall cause the Trust, to engage in the
following activities:
(a) to issue and sell Preferred Securities and Common
Securities, in each case in accordance with this Declaration; provided,
however, that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities, and, provided
further, that there shall be no interests in the Trust other than the
Securities and the issuance of Securities shall be limited to (x) a one-time,
simultaneous issuance of both Preferred Securities and Common Securities on
the Closing Date and (y) any subsequent issuance of Preferred Securities on
the Option Closing Date pursuant to an exercise of the over-allotment option
granted to underwriters in the Underwriting Agreement.
(b) in connection with the issuance of the Preferred
Securities, at the direction of the Sponsor, to effect or cause to be effected
the filings, and to execute or cause to be executed, the documents, set forth
in Section 3.13 and to execute, deliver and perform on behalf of the Trust the
Depositary Agreement;
(c) to acquire as trust assets Debentures with the proceeds of
the sale of the Preferred Securities and Common Securities; provided, however,
that the Regular Trustees shall cause legal title to all of the Debentures to
be vested in, and the Debentures to be held of record in the name of, the
Property Trustee for the benefit of the Holders of the Preferred Securities
and the Common Securities;
(d) to cause the Trust to enter into the Underwriting
Agreement and such other agreements and arrangements as may be necessary or
desirable in connection with the sale of Preferred Securities to the initial
purchasers thereof and the consummation thereof, and to take all action, and
exercise all discretion, as may be necessary or desirable in connection with
the consummation thereof;
(e) to give prompt written notice to the Property Trustee and
Holders of the Securities of any notice received from SunAmerica of its
election to shorten the scheduled maturity date on the Debentures or the
occurrence of a Tax Event;
(f) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including for
the purposes of Section 316(c) of the Trust Indenture Act and with respect to
Distributions, voting rights, redemptions, and exchanges, and to issue
relevant notices to Holders of the Preferred Securities and Common Securities
as to such actions and applicable record dates;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.10(e), the Property
Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors
and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give the certificate to the Property Trustee required
by Section 314(a)(4) of the Trust Indenture Act, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses which are necessary or incidental to
carrying out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities, the Regular Trustees hereby initially
appointing the Property Trustee for such purposes;
(m) to take all actions and perform such duties as may be
required of the Regular Trustee pursuant to the terms of the Securities set
forth in Exhibits B and C hereto;
(n) to execute all documents or instruments, perform all
duties and powers and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing;
(o) to take all action which may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders of the
Securities or to enable the Trust to effect the purposes for which the Trust
has been created;
(p) to take all action, not inconsistent with this
Declaration or with applicable law, which the Regular Trustees determine in
their discretion to be reasonable and necessary or desirable in carrying out
the activities of the Trust as set out in this Section 3.8, in order that:
(i) the Trust will not be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) the Trust will not be classified for United States
federal income tax purposes as an association taxable as a
corporation or a partnership and will be treated as a grantor trust
for United States federal income tax purposes; and
(iii) the Trust will comply with any requirements imposed by
any taxing authority on holders of instruments treated as
indebtedness for United States federal income tax purposes;
provided that such action does not adversely affect the interests of Holders;
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf
of the Trust; and
(r) subject to the requirements of Rule 3a-5 and Section
317(b) of the Trust Indenture Act, to appoint one or more Paying Agents in
addition to the Property Trustee.
The Regular Trustees must exercise the powers set forth in this
Section 3.8 in a manner which is consistent with the purposes and functions of
the Trust set out in Section 3.5 and the Regular Trustees shall not take any
action which is inconsistent with the purposes and functions of the Trust set
forth in Section 3.5.
Subject to this Section 3.8, the Regular Trustees shall have
none of the powers nor any of the authority of the Property Trustee set forth
in Section 3.10.
SECTION 3.9 Prohibition of Actions by Trust and Trustees.
The Trust shall not, and the Trustees (including the Property
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall
not and the Trustees (including the Property Trustee) shall not:
(a) invest any proceeds received by the Trust from holding
the Debentures but shall promptly distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the Securities;
(b) acquire any assets other than as expressly provided
herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any loans, other than loans represented by the
Debentures;
(e) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way whatsoever;
(f) issue any securities or other evidences of beneficial
ownership of, or beneficial interests in, the Trust other than the Securities;
(g) incur any indebtedness for borrowed money; or
(h) (i) direct the time, method and place of exercising any
trust or power conferred upon the Debenture Trustee with respect to the
Debentures or the Property Trustee with respect to the Preferred Securities,
(ii) waive any past default that is waivable under Section 6.06 of the
Indenture, (iii) exercise any right to rescind or annul any declaration that
the principal of all of the Debentures shall be due and payable or (iv)
consent to any amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, unless in the case of this
clause (h) the Property Trustee shall have received an unqualified opinion of
nationally recognized independent tax counsel recognized as expert in such
matters to the effect that such action will not cause the Trust to be
classified for United States federal income tax purposes as an association
taxable as a corporation or partnership and that the Trust will continue to be
classified as a grantor trust for United States federal income tax purposes.
SECTION 3.10 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and
held of record in the name of the Property Trustee in trust for the benefit of
the Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Article V. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or, if the Property
Trustee does not also act as the Delaware Trustee, the Delaware Trustee.
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
bank account (the "Property Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders of
the Securities and, on the receipt of payments of funds made in
respect of the Debentures held by the Property Trustee, deposit such
funds into the Property Account and, without any further acts of the
Property Trustee or the Regular Trustees, promptly make payments to
the Holders of the Preferred Securities and Common Securities from
the Property Account in accordance with Section 6.1. Funds in the
Property Account shall be held uninvested, and without liability for
interest thereon, until disbursed in accordance with this
Declaration. The Property Account shall be an account which is
maintained with a banking institution whose long term unsecured
indebtedness is rated by a "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act, at least equal to (but in no event less
than "A" or the equivalent) the rating assigned to the Preferred
Securities by a nationally recognized statistical rating
organization;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect promptly the redemption of the
Preferred Securities and the Common Securities to the extent the
Debentures are redeemed or mature;
(iii) upon notice of distribution issued by the Regular
Trustees in accordance with the terms of the Preferred Securities and
the Common Securities, engage in such ministerial activities as shall
be necessary or appropriate to effect promptly the distribution
pursuant to terms of the Securities of Debentures to Holders of
Securities; and
(iv) have the legal power to exercise all of the rights,
powers and privileges of a holder of the Debentures under the
Indenture and, if an Event of Default occurs and is continuing, the
Property Trustee, subject to Section 2.6(b), shall for the benefit of
the Holders of the Securities, enforce its rights as holder of the
Debentures under the Indenture, subject to the rights of the Holders
of the Preferred Securities pursuant to the terms of this
Declaration, the Business Trust Act and the Trust Indenture Act.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant
to the terms of the Securities set forth in Exhibits B and C hereto.
(e) The Property Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default or the Property
Trustee's duties and obligations under this Declaration, the Business Trust
Act or the Trust Indenture Act.
(f) All moneys deposited in the Property Account, and all
Debentures held by the Property Trustee for the benefit of the Holders of the
Securities will not be subject to any right, charge, security interest, lien
or claim of any kind in favor of, or for the benefit of the Property Trustee
or its agents or their creditors.
(g) The Property Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities, transmit by mail,
first class postage prepaid, to the holders of the Securities, as their names
and addresses appear upon the register, notice of all defaults with respect to
the Securities known to the Property Trustee, unless such defaults shall have
been cured before the giving of such notice (the term "defaults" for the
purposes of this Section 3.10(g) being hereby defined to be an Indenture Event
of Default, not including any periods of grace provided for in the Indenture
and irrespective of the giving of any notice provided therein); provided,
that, except in the case of default in the payment of the principal of (or
premium, if any) or interest on any of the Debentures, the Property Trustee
shall be protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors
and/or Responsible Officers, of the Property Trustee in good faith
determine that the withholding of such notice is in the interests of the
Holders of the Securities. The Property Trustee shall not be deemed to
have knowledge of any default, except (i) a default in the payment of
principal, premium or interest on the Debentures or (ii) any default as to
which the Property Trustee shall have received written notice or a
Responsible Officer charged with the administration of this Declaration
shall have obtained written notice.
(h) The Property Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the
proceeds thereof distributed to the Holders of
Securities pursuant to the terms of the Securities;
or
(ii) a Successor Property Trustee has been appointed and
accepted that appointment in accordance with
Article V.
(i) The Property Trustee shall act as paying agent in respect
of the Common Securities and, if the Preferred Securities are not in book
entry only form, the Preferred Securities and, subject to Section 3.8(r), may
authorize one or more Persons (each, a "Paying Agent") to pay Distributions,
redemption payments or liquidation payments on behalf of the Trust with
respect to the Preferred Securities. Any such Paying Agent shall comply with
Section 317(b) of the Trust Indenture Act. Any Paying Agent may be removed
by the Property Trustee, after consultation with the Regular Trustees, at any
time and a successor Paying Agent or additional Paying Agents may be appointed
at any time by the Property Trustee, subject to Section 3.8(r).
(j) The Property Trustee shall give prompt written notice to
the Holders of the Securities of any notice received by it from SunAmerica of
its election to defer payments of interest on the Debentures by extending the
interest payment period with respect thereto.
(k) Subject to this Section 3.10, the Property Trustee shall
have none of the powers or the authority of the Regular Trustees set forth in
Section 3.8.
(l) The Property Trustee shall exercise the powers, duties and
rights set forth in this Section 3.10 and Section 3.12 in a manner which is
consistent with the purposes and functions of the Trust set out in Section
3.5, and the Property Trustee shall not take any action which is
inconsistent with the purposes and functions of the Trust set forth in
Section 3.5.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 5.1(a)(3), the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees and the Property Trustee described in
this Declaration. Except as set forth in Section 5.1(a)(3), the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act. No implied covenants
or obligations shall be read into this Declaration against the Delaware
Trustee.
SECTION 3.12 Certain Rights and Duties of the Property Trustee.
(a) The Property Trustee, before the occurrence of an Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration, and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.6), the Property Trustee
shall exercise such of the rights and powers vested in it by this Declaration,
and use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this
Declaration, and the Property Trustee shall not be liable
except for the performance of such duties and obligations
as are specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into this
Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as
to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Property Trustee and conforming
to the requirements of this Declaration; but in the case
of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders as provided herein
relating to the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee hereunder or under
the Indenture, or exercising any trust or power conferred upon the
Property Trustee under this Declaration; and
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable
ground for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Declaration or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(c) Subject to the provisions of Section 3.12(a) and (b):
(i) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part
and, if the Trust is excluded from the definition of Investment
Company solely by means of Rule 3a-7, subject to the requirements of
Rule 3a-7, request and rely upon a certificate, which shall comply
with the provisions of Section 314(e) of the Trust Indenture Act,
signed by any two of the Regular Trustees or by an authorized officer
of the Sponsor, as the case may be;
(ii) The Property Trustee (A) may consult with counsel (which
may be counsel to the Sponsor or any of its Affiliates and may
include any of its employees) selected by it in good faith and with
due care and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon and in accordance with
such advice and opinion and (B) shall have the right at any time to
seek instructions concerning the administration of this Declaration
from any court of competent jurisdiction;
(iii) The Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Property Trustee shall not
be responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it in good faith and with due care;
(iv) The Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holders, unless such Holders shall
have offered to the Property Trustee reasonable security and
indemnity against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in complying
with such request or direction; provided that nothing contained in
this clause (iv) shall relieve the Property Trustee of the
obligation, upon the occurrence of an Event of Default (which has not
been cured or waived) to exercise such of the rights and powers
vested in it by this Declaration, and to use the same degree of care
and skill in this exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs; and
(v) Any action taken by the Property Trustee or its agents
hereunder shall bind the Holders of the Securities and the signature
of the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action; and no third party shall be
required to inquire as to the authority of the Property Trustee to so
act, or as to its compliance with any of the terms and provisions of
this Declaration, both of which shall be conclusively evidenced by
the Property Trustee's or its agent's taking such action.
SECTION 3.13 Registration Statement and Related Matters.
In accordance with the Original Declaration, SunAmerica and the
Trustees have authorized and directed, and hereby confirm the authorization
of, SunAmerica, as the sponsor of the Trust, (i) to file with the Commission
and execute, in each case on behalf of the Trust, (a) the Registration
Statement on Form S-3 (File No. 333-14201 and 333-14201-01 (the "1933 Act
Registration Statement") including Amendment Nos. 1-2 thereto and any further
pre-effective or post-effective amendments to such Registration Statement,
relating to the registration under the Securities Act of the Preferred
Securities of the Trust and (b) a Registration Statement on Form 8-A or other
appropriate form (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under Section 12(b) of
the Exchange Act; (ii) to file with the New York Stock Exchange and execute on
behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Preferred Securities to be listed on the
New York Stock Exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as SunAmerica on behalf of
the Trust, may deem necessary or desirable and (iv) to execute on behalf of
the Trust the Underwriting Agreement. In the event that any filing referred
to in clauses (i)-(iii) above is required by the rules and regulations of the
Commission, the New York Stock Exchange or state securities or blue sky laws,
to be executed on behalf of the Trust by the Trustees, the Regular Trustees,
in their capacities as Trustees of the Trust, are hereby authorized and
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that the Property Trustee and
the Delaware Trustee, in their capacities as Trustees of the Trust, shall
not be required to join in any such filing or execute on behalf of the
Trust any such document unless required by the rules and regulations of the
Commission, the New York Stock Exchange or state securities or blue sky
laws. In connection with all of the foregoing, SunAmerica and each
Trustee, solely in its capacity as Trustee of the Trust, have constituted
and appointed, and hereby confirm the appointment of, Eli Broad, Jay S.
Wintrob, Susan L. Harris and James M. Lurie and each of them, as his, her
or its, as the case may be, true and lawful attorneys-in-fact, and agents,
with full power of substitution and resubstitution, for SunAmerica or such
Trustee or in SunAmerica's or such Trustee's name, place and stead, in any
and all capacities, to sign any and all amendments (including post-
effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Commission, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as SunAmerica or
such Trustee might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them, or their or his
or her substitute or substitutes, shall do or cause to be done by virtue
hereof.
SECTION 3.14 Filing of Amendments to Certificate of Trust.
The Certificate of Trust as filed with the Secretary of State
of the State of Delaware on September 6, 1995 is attached hereto as Exhibit A.
On or after the date of execution of this Declaration, the Trustees shall
cause the filing with the Secretary of State of the State of Delaware of
such amendments to the Certificate of Trust as the Trustees shall deem
necessary or desirable.
SECTION 3.15 Execution of Documents by Regular Trustees.
Unless otherwise determined by the Regular Trustees and except
as otherwise required by the Business Trust Act with respect to the
Certificate of Trust or otherwise, a majority of, or if there are only two,
both of, the Regular Trustees are authorized to execute and deliver on behalf
of the Trust any documents which the Regular Trustees have the power and
authority to execute or deliver pursuant to this Declaration.
SECTION 3.16 Trustees Not Responsible for Recitals or
Issuance of Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor and the Trustees do not assume
any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust or
any part thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration or the Securities.
SECTION 3.17 Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Article VIII hereof, shall have existence until September 30, 2045.
ARTICLE IV
SPONSOR
SECTION 4.1 Purchase of Common Securities by Sponsor.
On the Closing Date the Sponsor will purchase all of the Common
Securities issued by the Trust at the same time as the Preferred Securities to
be issued on such date are issued, such purchase to be in an amount equal to
3% of the total capital of the Trust (including for this purpose the maximum
amount of Preferred Securities, if any, which may be issued on the Option
Closing Date pursuant to the exercise of the overallotment option set forth in
the Underwriting Agreement).
SECTION 4.2 Expenses.
(a) In connection with the purchase of the Debentures by the
Trust, the Sponsor, in its capacity as Sponsor and not as a Holder, shall be
responsible for and shall pay for all debts and obligations (other than with
respect to the Securities) and all costs and expenses of the Trust (including,
but not limited to, costs and expenses relating to the organization of the
Trust, the issuance of the Preferred Securities to initial purchasers thereof,
the fees and expenses (including reasonable counsel fees and expenses) of the
Trustees (including any amounts payable under Article X), the costs and
expenses relating to the operation of the Trust, including without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or accounting
equipment, paying agent(s), registrar(s), transfer agent(s), duplicating,
travel and telephone and other telecommunications expenses and costs and
expenses incurred in connection with the disposition of Trust assets).
(b) In connection with the purchase of the Debentures by the
Trust, the Sponsor, in its capacity as Sponsor and not as a Holder, will pay
any and all taxes (other than United States withholding taxes attributable to
the Trust or its assets) and all liabilities, costs and expenses with respect
to such taxes of the Trust.
(c) The Sponsor's obligations under this Section 4.2 shall be
for the benefit of, and shall be enforceable by, any Person to whom any such
debts, obligations, costs, expenses and taxes are owed (a "Creditor") whether
or not such Creditor has received notice hereof. Any such Creditor may
enforce the Sponsor's obligations under this Section 4.2 directly against the
Sponsor and the Sponsor irrevocably waives any right or remedy to require that
any such Creditor take any action against the Trust or any other Person before
proceeding against the Sponsor. The Sponsor agrees to execute such additional
agreements as may be necessary or desirable in order to give full effect to
the provisions of this Section 4.2.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Qualifications.
(a) The number of Trustees initially shall be five (5). At
any time (i) before the issuance of the Securities, the Sponsor may, by
written instrument, increase or decrease the number of, and appoint, remove
and replace the, Trustees, and (ii) after the issuance of the Securities and
except as provided in clause (5) below and Section 5.2(a)(ii)(B) with respect
to the Special Regular Trustee, the number of Trustees may be increased or
decreased solely by, and Trustees may be appointed, removed or replaced solely
by, vote of Holders of Common Securities representing a Majority in
liquidation amount of the Common Securities voting as a class; provided that
in any case:
(1) the number of Trustees shall be at least five (5)
unless the Trustee that acts as the Property Trustee also acts
as the Delaware Trustee, in which cases the number of Trustees
shall be at least three (3);
(2) unless a Special Regular Trustee has been appointed
(which appointment shall not impair the right of the Holders of
Common Securities to increase or decrease the number of, or to
appoint, remove or replace, Trustees (other than the Special
Regular Trustee) as provided above), at least a majority of the
Trustees shall at all times be officers, directors or employees
of SunAmerica;
(3) if required by the Business Trust Act, one Trustee
(the "Delaware Trustee") shall be either a natural person who
is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in
the State of Delaware and otherwise is permitted to act as a
Trustee hereunder under the laws of the State of Delaware,
except that if the Property Trustee has its principal place of
business in the State of Delaware and otherwise is permitted to
act as a Trustee hereunder under the laws of the State of
Delaware, then the Property Trustee shall also be the Delaware
Trustee and Section 3.9 shall have no application;
(4) there shall at all times be a Property Trustee
hereunder which shall satisfy the requirements of Section
5.1(c); and
(5) the number of Trustees shall be increased
automatically by one (1) if an Appointment Event has occurred
and is continuing and the Holders of a Majority in liquidation
amount of the Preferred Securities appoint a Special Regular
Trustee in accordance with Section 5.2(a)(ii)(B) and the terms
of the Preferred Securities.
Each Trustee shall be either a natural person at least 21 years of age or a
legal entity which shall act through one or more duly appointed
representatives.
(b) The initial Regular Trustees shall be:
James R. Belardi
Scott H. Richland
Scott L. Robinson
c/o SunAmerica Inc.
1 SunAmerica Center
Los Angeles, California 90067-6022
(c) There shall at all times be one Trustee which shall act as
Property Trustee. In order to act as Property Trustee hereunder, such Trustee
shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
Section 5.1(c)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published; and
(iii) if the Trust is excluded from the definition of an
Investment Company solely by reason of Rule 3a-7 and to the extent
Rule 3a-7 requires a trustee having certain qualifications to hold
title to the "eligible assets" (as defined in Rule 3a-7) of the
Trust, the Property Trustee shall possess those qualifications.
If at any time the Property Trustee shall cease to satisfy the
requirements of clauses (i)-(iii) above, the Property Trustee shall
immediately resign in the manner and with the effect set out in Section
5.2(d). If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Property Trustee and the Holders of the Common Securities (as if such
Holders were the obligor referred to in Section 310(b) of the Trust Indenture
Act) shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act. The Preferred Guarantee shall be deemed to be
specifically described in this Declaration for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
The initial Trustee which shall serve as the Property Trustee
is The Bank of New York, whose address is as set forth in Section 14.1(b).
(d) The initial Trustee which shall serve as the Delaware
Trustee is The Bank of New York (Delaware), whose address is as set forth in
Section 14.1(c).
(e) Any action taken by (i) Holders of Common Securities
pursuant to this Article V or (ii) Holders of Preferred Securities pursuant to
this Article V to appoint or remove a Special Regular Trustee upon the
occurrence of an Appointment Event, shall be taken at a meeting of Holders of
Common Securities or Preferred Securities, as the case may be, convened for
such purpose or by written consent as provided in Section 12.2.
(f) No amendment may be made to this Section 5.1 which would
change any rights with respect to the number, existence or appointment and
removal of Trustees (other than any Special Regular Trustee), except with the
consent of each Holder of Common Securities.
(g) No amendment may be made to this Section 5.1 or Section
5.2(a)(ii)(B), which would change the rights of Holders of Preferred
Securities to appoint, remove or replace a Special Regular Trustee except with
the consent of each Holder of Preferred Securities.
(h) Any corporation into which the Delaware Trustee or the
Property 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 Delaware Trustee or the Property Trustee shall be
a party, or any corporation succeeding to the corporate trust business of the
Delaware Trustee or the Property Trustee, shall be the successor of the
Delaware Trustee or the Property Trustee hereunder, as applicable, provided
that such corporation shall be qualified under Section 310(b) of the Trust
Indenture Act of 1939 and qualified under the provisions of this Section 5.1,
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.
SECTION 5.2 Appointment, Removal and Resignation of
Trustees.
(a) Subject to Section 5.2(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of the Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of the Securities,
(A) other than with respect to the Special Regular Trustee,
by vote of the Holders of a Majority in liquidation
amount of the Common Securities voting as a class; and
(B) if an Appointment Event has occurred and is continuing,
one (1) additional Regular Trustee (the "Special
Regular Trustee") may be appointed, who need not be an
Affiliate of the Sponsor, by vote of the Holders of a
Majority in liquidation amount of the Preferred
Securities, voting as a class and such Special Regular
Trustee may only be removed (otherwise than by the
operation of Section 5.2(c)), by vote of the Holders of
a Majority in liquidation amount of the Preferred
Securities voting as a class.
(b) (i) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 5.2(a) until a Successor Property
Trustee possessing the qualifications to act as Property
Trustee under Section 5.1(c) has been appointed and has accepted
such appointment by written instrument executed by such
Successor Property Trustee and delivered to the Regular
Trustees, the Sponsor and the Property Trustee being removed;
and
(ii) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with Section 5.2(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under
Section 5.1(a)(3) (a "Successor Delaware Trustee") has been
appointed and has accepted such appointment by written
instrument executed by such Successor Delaware Trustee and
delivered to the Regular Trustees, the Sponsor and the Delaware
Trustee being removed.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation;
provided that a Special Regular Trustee shall only hold office while
an Appointment Event is continuing and shall cease to hold office
immediately after the Appointment Event pursuant to which the Special
Regular Trustee was appointed and all other Appointment Events cease
to be continuing.
(d) Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument (a "Resignation Request") in
writing signed by the Trustee and delivered to the Sponsor and the
Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that:
(i) no such resignation of the Trustee that acts as the
Property Trustee shall be effective until:
(A) a Successor Property Trustee possessing the
qualifications to act as Property Trustee
under Section 5.1(c) has been appointed and
has accepted such appointment by instrument
executed by such Successor Property Trustee
and delivered to the Trust, the Sponsor and
the resigning Property Trustee; or
(B) if the Trust is excluded from the definition
of an Investment Company solely by reason of
Rule 3a-7, until the assets of the Trust have
been completely liquidated and the proceeds
thereof distributed to the Holders of the
Securities;
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee; and
(iii) no such resignation of a Special Regular Trustee shall
be effective until the 60th day following delivery of
the Resignation Request to the Sponsor and the Trust or
such later date specified in the Resignation Request
during which period the Holders of the Preferred
Securities shall have the right to appoint a successor
Special Regular Trustee as provided in this Article V.
(e) If no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this
Section 5.2 within 60 days after delivery to the Sponsor and the
Trust of a Resignation Request, the resigning Property Trustee or
Delaware Trustee may petition any court of competent jurisdiction for
appointment of a Successor Property Trustee or Successor Delaware
Trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
SECTION 5.3 Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1 or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by a majority of the
Regular Trustees shall be conclusive evidence of the existence of such
vacancy. The vacancy shall be filled with a Trustee appointed in accordance
with the requirements of this Article V.
SECTION 5.4 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of
a Trustee, or any one of them, shall not operate to annul the Trust. Whenever
a vacancy in the number of Regular Trustees shall occur until such vacancy is
filled as provided in this Article V, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees
by this Declaration.
SECTION 5.5 Meetings.
Meetings of the Regular Trustees shall be held from time to
time upon the call of any Trustee. Regular meetings of the Regular Trustees
may be held at a time and place fixed by resolution of the Regular Trustees.
Notice of any in-person meeting of the Regular Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 48 hours before such meeting.
Notice of any telephonic meeting of the Regular Trustees or any committee
thereof shall be hand delivered or otherwise delivered in writing (including
by facsimile, with a hard copy by overnight courier) not less than 24 hours
before such meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in
person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any
activity on the ground that the meeting has not been lawfully called or
convened. Unless provided otherwise in this Declaration, any action of the
Regular Trustees may be taken at a meeting by vote of a majority of the
Regular Trustees present (whether in person or by telephone) and eligible to
vote with respect to such matter; provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Regular Trustees.
SECTION 5.6 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
his or her power for the purpose of executing any registration statement or
amendment thereto or other document or schedule filed with the Commission or
making any other governmental filing (including, without limitation to filings
referred to in Section 3.13).
(b) The Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular
Trustees may deem expedient, to the extent such delegation is not prohibited
by applicable law or contrary to the provisions of the Trust, as set forth
herein.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive periodic distributions, redemption
payments and liquidation distributions in accordance with the applicable terms
of the relevant Holder's Securities ("Distributions"). Distributions shall
be made to the Holders of Preferred Securities and Common Securities in
accordance with the terms of the Securities as set forth in Exhibits B and C
hereto. If and to the extent that SunAmerica makes a payment of interest
(including Compounded Interest (as defined in the Indenture)), premium and
principal on the Debentures held by the Property Trustee (the amount of any
such payment being a "Payment Amount"), the Property Trustee shall and is
directed to promptly make a Distribution of the Payment Amount to Holders in
accordance with the terms of the Securities as set forth in Exhibits B and C
hereto.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall issue on behalf of the Trust
Securities in fully registered form representing undivided beneficial
interests in the assets of the Trust in accordance with Section 7.1(b) and for
the consideration specified in Section 3.3.
(b) The Regular Trustees shall issue on behalf of the Trust
one class of preferred securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in Exhibit B (the
"Preferred Securities") which terms are incorporated by reference in, and made
a part of, this Declaration as if specifically set forth herein, and one class
of common securities representing undivided beneficial interests in the assets
of the Trust having such terms as are set forth in Exhibit C (the "Common
Securities") which terms are incorporated by reference in, and made a part of,
this Declaration as if specifically set forth herein. The Trust shall have no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by
the Regular Trustees (or if there are more than two Regular Trustees by any
two of the Regular Trustees). Such signatures may be the manual or facsimile
signatures of the present or any future Regular Trustee. Typographical and
other minor errors or defects in any such reproduction of any such signature
shall not affect the validity of any Certificate. In case any Regular Trustee
of the Trust who shall have signed any of the Certificates shall cease to be
such Regular Trustee before the Certificate so signed shall be delivered by
the Trust, such Certificate nevertheless may be delivered as though the person
who signed such Certificate had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons as, at the
actual date of the execution of such Certificate, shall be the Regular
Trustees of the Trust, although at the date of the execution and delivery of
the Declaration any such person was not such a Regular Trustee. Certificates
shall be printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Regular Trustees, as evidenced by
their execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Securities may be listed, or to
conform to usage. Pending the preparation of definitive Certificates, the
Regular Trustees on behalf of the Trust may execute temporary Certificates
(printed, lithographed or typewritten), in substantially the form of the
definitive Certificates in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Certificates, all as may be determined by the Regular Trustees. Each
temporary Certificate shall be executed by the Regular Trustees on behalf of
the Trust upon the same conditions and in substantially the same manner, and
with like effect, as definitive Certificates. Without unnecessary delay, the
Regular Trustees on behalf of the Trust will execute and furnish definitive
Certificates and thereupon any or all temporary Certificates may be
surrendered to the transfer agent and registrar in exchange therefor (without
charge to the Holders). Each Certificate whether in temporary or definitive
form shall be countersigned by the manual or facsimile signature of an
authorized signatory of the Person acting as registrar and transfer agent for
the Securities, which shall initially be the Property Trustee.
(d) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(f) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by this Declaration.
(g) Upon issuance of the Securities as provided in this
Declaration, the Regular Trustees on behalf of the Trust shall return to
SunAmerica the $10 constituting initial trust assets as set forth in the
Original Declaration.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
This Declaration and the Trust shall terminate and be of no
further force or effect when:
(i) all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall
have been paid to the Holders of Securities in accordance with the
terms of the Securities; or
(ii) all of the Debentures shall have been distributed to the
Holders of Securities in exchange for all of the Securities in
accordance with the terms of the Securities; or
(iii) upon the expiration of the term of the Trust as set forth
in Section 3.17,
and a certificate of cancellation is filed by the Trustees with the Secretary
of State of the State of Delaware. The Trustees shall so file such a
certificate as soon as practicable after the occurrence of an event referred
to in this Section 8.1.
The provisions of Sections 3.12 and 4.2 and Article X shall
survive the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration.
Any transfer or purported transfer of any Security not made in accordance with
this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be
freely transferable.
(c) Subject to this Article IX, SunAmerica and any Related
Party may only transfer Common Securities to SunAmerica or a Related Party;
provided that any such transfer shall be subject to the condition that the
transferor shall have obtained (1) either a ruling from the Internal Revenue
Service or an unqualified written opinion addressed to the Trust and delivered
to the Trustees of nationally recognized independent tax counsel experienced in
such matters to the effect that such transfer will not (i) cause the Trust to
be treated as issuing a class of interests in the Trust differing from the
class of interests represented by the Common Securities originally issued to
SunAmerica, (ii) result in the Trust acquiring or disposing of, or being
deemed to have acquired or disposed of, an asset, or (iii) result in or cause
the Trust to be treated as anything other than a grantor trust for United
States federal income tax purposes and (2) an unqualified written opinion
addressed to the Trust and delivered to the Trustees of a nationally
recognized independent counsel experienced in such matters that such transfer
will not cause the Trust to be an Investment Company or controlled by an
Investment Company.
SECTION 9.2 Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges which may be
imposed in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to
be issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees
duly executed by the Holder or such Holder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer shall be
canceled by the Regular Trustees. A transferee of a Certificate shall be
entitled to the rights and subject to the obligations of a Holder hereunder
upon the receipt by such transferee of a Certificate. By acceptance of a
Certificate, each transferee shall be deemed to have agreed to be bound by
this Declaration.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole holder
of such Certificate and of the Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to
or interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trustees shall have
actual or other notice thereof.
SECTION 9.4 Book Entry Interests.
Unless otherwise specified in the terms of the Preferred
Securities, the Preferred Securities Certificates, on original issuance
(including Preferred Securities, if any, issued on the Option Closing Date
pursuant to the exercise of the overallotment option set forth in the
Underwriting Agreement), will be issued in the form of one or more, fully
registered, global Preferred Security Certificates (each a "Global
Certificate"), to be delivered to DTC, the initial Clearing Agency, by, or on
behalf of, the Trust. Such Global Certificates shall initially be registered
on the books and records of the Trust in the name of Cede & Co., the nominee
of DTC, and no Preferred Security Beneficial Owner will receive a definitive
Preferred Security Certificate representing such Preferred Security Beneficial
Owner's interests in such Global Certificates, except as provided in Section
9.7. Unless and until definitive, fully registered Preferred Security
Certificates (the "Definitive Preferred Security Certificates") have been
issued to the Preferred Security Beneficial Owners pursuant to Section 9.7:
(i) the provisions of this Section 9.4 shall be in full force
and effect;
(ii) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including
the payment of Distributions on the Global Certificates and receiving
approvals, votes or consents hereunder) as the Holder of the
Preferred Securities and the sole holder of the Global Certificates
and, except as set forth herein or in Rule 3a-7 with respect to the
Property Trustee, shall have no obligation to the Preferred Security
Beneficial Owners;
(iii) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the
provisions of this Section 9.4 shall control; and
(iv) the rights of the Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency and/or
the Clearing Agency Participants. DTC will make book entry transfers
among the Clearing Agency Participants and receive and transmit
payments of Distributions on the Global Certificates to such Clearing
Agency Participants.
SECTION 9.5 Notices to Holders of Certificates.
Whenever a notice or other communication to the Holders is
required to be given under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued pursuant to Section
9.7, the relevant Trustees shall give all such notices and communications,
specified herein to be given to Preferred Securities Holders, to the Clearing
Agency and, with respect to any Preferred Security Certificate registered in
the name of a Clearing Agency or the nominee of a Clearing Agency, the
Trustees shall, except as set forth herein or in Rule 3a-7 with respect to the
Property Trustee, have no notice obligations to the Preferred Security
Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency
with respect to the Preferred Securities.
SECTION 9.7 Definitive Preferred Securities Certificates.
If (i) a Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 9.6 or (ii) the Regular Trustees elect after consultation
with the Sponsor to terminate the book entry system through the Clearing
Agency with respect to the Preferred Securities, then (x) Definitive Preferred
Security Certificates shall be prepared by the Regular Trustees on behalf of
the Trust with respect to such Preferred Securities and (y) upon surrender of
the Global Certificates by the Clearing Agency, accompanied by registration
instructions, the Regular Trustees shall cause definitive Preferred Security
Certificates to be delivered to Preferred Security Beneficial Owners in
accordance with the instructions of the Clearing Agency. Neither the Trustees
nor the Trust shall be liable for any delay in delivery of such instructions
and each of them may conclusively rely on and shall be protected in relying
on, such instructions.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and (b)
there shall be delivered to the Regular Trustees such security or indemnity as
may be required by them to keep each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a bona fide
purchaser, any two Regular Trustees on behalf of the Trust shall execute and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 9.8, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 10.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this Declaration or by
law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's gross
negligence (or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders of Securities might properly be
paid.
(c) Pursuant to Section 3803(a) of the Business Trust Act,
the Holders of Securities, in their capacities as Holders, shall be entitled
to the same limitation of liability that is extended to stockholders of
private corporations for profit organized under the General Corporation Law
of the State of Delaware.
SECTION 10.2 Indemnification.
(a) To the fullest extent permitted by applicable law, the
Sponsor shall indemnify and hold harmless each Indemnified Person from and
against any loss, damage or claim incurred by such Indemnified Person by
reason of any act or omission performed or omitted by such Indemnified Person
in good faith on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration, except that no Indemnified Person
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of gross negligence (or, in the
case of the Property Trustee, negligence) or willful misconduct with respect
to such acts or omissions.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Sponsor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Sponsor of an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 10.2(a).
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail,
each transaction of the Trust. The books of account shall be maintained on
the accrual method of accounting, in accordance with generally accepted
accounting principles, consistently applied. The Trust shall use the accrual
method of accounting for United States federal income tax purposes. The books
and records of the Trust, together with a copy of this Declaration and a
certified copy of the Certificate of Trust, or any amendment thereto, shall at
all times be maintained at the principal office of the Trust and shall be open
for inspection for any examination by any Holder or its duly authorized
representative for any purpose reasonably related to its interest in the Trust
during normal business hours.
(b) The Regular Trustees shall, as soon as available after the
end of each Fiscal Year of the Trust, cause to be prepared and mailed to each
Holder of Securities unaudited financial statements of the Trust for such
Fiscal Year, prepared in accordance with generally accepted accounting
principles; provided that if the Trust is required to comply with the periodic
reporting requirements of Sections 13(a) or 15(d) of the Exchange Act, such
financial statements for such Fiscal Year shall be examined and reported on by
a firm of independent certified public accountants selected by the Regular
Trustees (which firm may be the firm used by the Sponsor).
(c) The Regular Trustees shall cause to be prepared and mailed
to each Holder of Securities, an annual United States federal income tax
information statement, on such form as is required by the Code, containing
such information with regard to the Securities held by each Holder as is
required by the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the Regular
Trustees shall endeavor to deliver all such statements within 30 days after
the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on such form as is required by the Code, and any other annual
income tax returns required to be filed by the Regular Trustees on behalf of
the Trust with any state or local taxing authority, such returns to be filed
as soon as practicable after the end of each Fiscal Year of the Trust.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Account and no other funds from the Trust shall be
deposited in the Property Account. The sole signatories for such accounts
shall be designated by the Regular Trustees; provided, however, that the
Property Trustee shall designate the sole signatories for the Property
Account.
SECTION 11.4 Withholding.
The Trust and the Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust
shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably
be requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Trust shall file required forms
with applicable jurisdictions and, unless an exemption from withholding is
properly established by a Holder, shall remit amounts withheld with respect to
the Holder to applicable jurisdictions. To the extent that the Trust is
required to withhold and pay over any amounts to any authority with respect to
distributions or allocations to any Holder, the amount withheld shall be
deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claimed overwithholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount to be withheld was
not withheld from a Distribution, the Trust may reduce subsequent
Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended by, and
only by, a written instrument executed by a majority of the Regular Trustees;
provided, however, that (i) no amendment to this Declaration shall be made
unless the Regular Trustees shall have obtained (A) either a ruling from the
Internal Revenue Service or a written unqualified opinion of nationally
recognized independent tax counsel experienced in such matters to the effect
that such amendment will not cause the Trust to be classified for United
States federal income tax purposes as an association taxable as a corporation
or a partnership and to the effect that the Trust will continue to be treated
as a grantor trust for purposes of United States federal income taxation and
(B) a written unqualified opinion of nationally recognized independent counsel
experienced in such matters to the effect that such amendment will not cause
the Trust to be an Investment Company which is required to be registered under
the Investment Company Act, (ii) at such time after the Trust has issued any
Securities which remain outstanding, any amendment which would adversely
affect the rights, privileges or preferences of any Holder of Securities may
be effected only with such additional requirements as may be set forth in the
terms of such Securities, (iii) Section 4.2, Section 9.1(c) and this Section
12.1 shall not be amended without the consent of all of the Holders of the
Securities, (iv) no amendment which adversely affects the rights, powers and
privileges of the Property Trustee shall be made without the consent of the
Property Trustee, (v) Article IV shall not be amended without the consent of
the Sponsor, (vi) the rights of Holders of Common Securities under Article V
to increase or decrease the number of, and to appoint, replace or remove,
Trustees (other than a Special Regular Trustee) shall not be amended without
the consent of each Holder of Common Securities and (vii) the rights of
Holders of Preferred Securities to appoint or remove a Special Regular Trustee
shall not be amended without the consent of each Holder of Preferred
Securities.
(b) Notwithstanding Section 12.2(a)(ii), this Declaration may
be amended without the consent of the Holders of the Securities to (i) cure
any ambiguity, (ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision of this
Declaration, (iii) to add to the covenants, restrictions or obligations of the
Sponsor, and (iv) to conform to any changes in Rule 3a-7 or any change in
interpretation or application of Rule 3a-7 by the Commission, which amendment
does not adversely affect the rights, preferences or privileges of the
Holders.
SECTION 12.2 Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of Preferred Securities and/or
Common Securities may be called at any time by the Regular Trustees (or as
provided in the terms of the Securities) to consider and act on any matter on
which Holders of such class of Securities are entitled to act under the terms
of this Declaration, the terms of the Securities or the rules of any stock
exchange on which the Preferred Securities are listed or admitted for trading.
The Regular Trustees shall call a meeting of Holders of Preferred Securities
or Common Securities, if directed to do so by Holders of at least 10% in
liquidation amount of such class of Securities. Such direction shall be given
by delivering to the Regular Trustees one or more calls in a writing stating
that the signing Holders of Securities wish to call a meeting and indicating
the general or specific purpose for which the meeting is to be called. Any
Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those specified Certificates shall be counted for purposes of
determining whether the required percentage set forth in the second sentence
of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provision shall apply to meetings of Holders of
Securities:
(i) Notice of any such meeting shall be given by mail to all
the Holders of Securities having a right to vote thereat not less
than 7 days nor more than 60 days prior to the date of such meeting.
Whenever a vote, consent or approval of the Holders of Securities is
permitted or required under this Declaration or the rules of any
stock exchange on which the Preferred Securities are listed or
admitted for trading, such vote, consent or approval may be given at
a meeting of the Holders of Securities. Any action that may be taken
at a meeting of the Holders of Securities may be taken without a
meeting if a consent in writing setting forth the action so taken is
signed by Holders of Securities owning not less than the minimum
aggregate liquidation amount of Securities that would be necessary to
authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting.
Prompt notice of the taking of action without a meeting shall be given
to the Holders of Securities entitled to vote who have not consented
in writing. The Regular Trustees may specify that any written ballot
submitted to the Holders of Securities for the purpose of taking any
action without a meeting shall be returned to the Trust within the
time specified by the Regular Trustees.
(ii) Each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of a Security is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after
the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the
pleasure of the Holder of the Security executing it. Except as
otherwise provided herein or in the terms of the Securities, all
matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as if
the Trust were a Delaware corporation and the Holders of the
Securities were stockholders of a Delaware corporation.
(iii) Each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate.
(iv) Unless otherwise provided in the Business Trust Act, this
Declaration or the rules of any stock exchange on which the Preferred
Securities are then listed or admitted for trading, the Regular
Trustees, in their sole discretion, shall establish all other
provisions relating to meetings of Holders of Securities, including
notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any Holders of Securities, waiver of any
such notice, action by consent without a meeting, the establishment
of a record date, quorum requirements, voting in person or by proxy
or any other matter with respect to the exercise of any such right to
vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property
Trustee.
(a) The Trustee which acts as initial Property Trustee
represents and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Property Trustee represents and warrants to
the Trust and the Sponsor at the time of the Successor Property Trustee's
acceptance of its appointment as Property Trustee that:
(i) The Property Trustee is a banking corporation with
trust powers, duly organized, validly existing and in good
standing under the laws of the State of its incorporation, with
trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this
Declaration.
(ii) The execution, delivery and performance by the
Property Trustee of this Declaration has been duly authorized
by all necessary corporate action on the part of the Property
Trustee. The Declaration has been duly executed and delivered
by the Property Trustee, and constitutes a legal, valid and
binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law).
(iii) The execution, delivery and performance of this
Declaration by the Property Trustee does not conflict with or
constitute a breach of the Charter or By-laws of the Property
Trustee.
(iv) No consent, approval or authorization of, or
registration with or notice to, any banking authority which
supervises or regulates the Property Trustee is required for
the execution, delivery or performance by the Property Trustee,
of this Declaration.
(v) The Property Trustee satisfies the qualifications
set forth in Section 5.1(c).
(b) The Trustee which acts as initial Delaware Trustee
represents and warrants to the Trust and the Sponsor at the date of this
Declaration, and each Successor Delaware Trustee represents and warrants to
the Trust and the Sponsor at the time of the Successor Delaware Trustee's
acceptance of its appointment as Delaware Trustee, that it satisfies the
qualifications set forth in Section 5.1(a)(3).
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as
the Regular Trustees on behalf of the Trust may give notice of to the
Holders of the Securities):
SunAmerica Capital Trust III
c/o SunAmerica Inc.
1 SunAmerica Center
Los Angeles, California 90067-6022
Attention: James R. Belardi
Scott H. Richland
Scott L. Robinson
Trustees
Facsimile No: (310) 772-6635
(b) if given to the Property Trustee, at the mailing address
of the Property Trustee set forth below (or such other address as the
Property Trustee may give notice of to the Holders of the
Securities):
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Facsimile No: (212) 815-5915
(c) if given to the Delaware Trustee, at the mailing address
of the Delaware Trustee set forth below (or such other address as the
Delaware Trustee may give notice of to the Holders of the
Securities):
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
Attention: Corporate Trust Administration
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address
as the Holder of the Common Securities may give notice to the Trust):
SunAmerica Inc.
1 SunAmerica Center
Los Angeles, California 90067-6022
Attention: Corporate Secretary
Facsimile No: (310) 772-6635
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust.
A copy of any notice to the Property Trustee or the Delaware
Trustee shall also be sent to the Trust. All notices shall be deemed to have
been given, when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid except that if a notice or other
document is refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
SECTION 14.2 Undertaking for Costs.
All parties to this Declaration agree, and each Holder of any
Securities by his or her acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Declaration, or in any suit against the
Property Trustee for any action taken or omitted by it as Property Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 14.2 shall not apply to any suit instituted by the Property Trustee,
to any suit instituted by any Holder of Preferred Securities, or group of
Holders of Preferred Securities, holding more than 10% in aggregate
liquidation amount of the outstanding Preferred Securities, or to any suit
instituted by any Holder of Preferred Securities for the enforcement of the
payment of the principal of (or premium, if any) or interest on the
Debentures, on or after the respective due dates expressed in such Debentures.
SECTION 14.3 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 14.5 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.6 Counterparts.
This Declaration may contain more than one counterpart of the
signature pages and this Declaration may be executed by the affixing of the
signature of the Sponsor and each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of the
signers had signed a single signature page.
SECTION 14.7 Intention of the Parties.
It is the intention of the parties hereto that the Trust not be
classified for United States federal income tax purposes as an association
taxable as a corporation or partnership but that the Trust be treated as a
grantor trust for United States federal income tax purposes. The provisions
of this Declaration shall be interpreted to further this intention of the
parties.
SECTION 14.8 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
SunAmerica Inc.,
as Sponsor
By:______________________________
Name: James R. Belardi
Title: Executive Vice President
________________________________
James R. Belardi,
as Trustee
________________________________
Scott L. Robinson,
as Trustee
________________________________
Scott H. Richland,
as Trustee
The Bank of New York,
as Trustee
By:______________________________
Name:
Title:
The Bank of New York (Delaware),
as Trustee
By:______________________________
Name:
Title:
EXHIBIT A
CERTIFICATE OF TRUST
OF
SUNAMERICA CAPITAL TRUST III
THIS Certificate of Trust of SunAmerica Capital Trust III (the
"Trust"), dated ______________, 1995, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. Code Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby
is SunAmerica Capital Trust III.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of
Delaware is The Bank of New York (Delaware), a Delaware banking corporation,
White Clay Center, Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of
the Trust, have executed this Certificate of Trust as of the date first above
written.
The Bank of New York (Delaware),
as Trustee
By: ________________________________
Name:
Title:
The Bank of New York,
as Trustee
By: ________________________________
Name:
Title:
____________________________________
James R. Belardi,
as Trustee
____________________________________
Scott H. Richland,
as Trustee
____________________________________
Scott L. Robinson,
as Trustee
EXHIBIT B
TERMS OF
PREFERRED SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration
of Trust of SunAmerica Capital Trust III dated as of November 13, 1996 (as
amended from time to time, the "Declaration"), the designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth below (each capitalized term used but not
defined herein having the meaning set forth in the Declaration):
1. Designation and Number. Preferred Securities of the Trust
with an aggregate liquidation amount in the assets of the Trust of Three
Hundred Million Dollars ($300,000,000) (including up to Forty-Five Million
Dollars ($45,000,000) issuable upon exercise of the overallotment option set
forth in the Underwriting Agreement) and a liquidation amount in the assets of
the Trust of $25 per Preferred Security, are hereby designated as "8.30% Trust
Originated Preferred Securities". The Preferred Security Certificates
evidencing the Preferred Securities shall be substantially in the form
attached hereto as Annex I, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice
or to conform to the rules of any stock exchange on which the Preferred
Securities are listed. In connection with the issuance and sale of the
Preferred Securities and the Common Securities, the Trust will purchase as
trust assets Debentures of SunAmerica having an aggregate principal amount
equal to the aggregate liquidation amount of the Preferred Securities and
Common Securities so issued and bearing interest at an annual rate equal to
the annual Distribution rate on the Preferred Securities and Common Securities
and having payment and redemption provisions which correspond to the payment
and redemption provisions of the Preferred Securities and Common Securities.
2. Distributions. (a) Periodic distributions payable on each
Preferred Security will be fixed at a rate per annum of 8.30% (the "Coupon
Rate") of the stated liquidation amount of $25 per Preferred Security.
Distributions in arrears for more than one quarter will bear interest at the
rate per annum of 8.30% thereof (to the extent permitted by law), compounded
quarterly. The term "Distributions" as used in these terms means such periodic
cash distributions and any such interest payable unless otherwise stated. A
Distribution will be made by the Property Trustee only to the extent that
interest payments are made in respect of the Debentures held by the Property
Trustee. The amount of Distributions payable for any period will be computed
for any full quarterly Distribution period on the basis of a 360-day year of
twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will
be computed on the basis of the actual number of days elapsed in such a 30-day
month.
(b) Distributions on the Preferred Securities will be
cumulative, will accrue from November 13, 1996 and will be payable quarterly
in arrears, on March 30, June 30, September 30 and December 30 of each year,
commencing on December 30, 1996, except as otherwise described below, but only
if and to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee. So long as SunAmerica shall not be
in default in the payment of interest on the Debentures, SunAmerica has the
right under the Indenture for the Debentures to defer payments of interest by
extending the interest payment period from time to time on the Debentures for
a period not exceeding 20 consecutive quarterly interest periods (each, an
"Extension Period") and, as a consequence, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted by
applicable law) at the rate of 8.30% per annum, compounded quarterly during
any such Extension Period. Prior to the termination of any such Extension
Period, SunAmerica may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarterly interest periods. Upon the
termination of any Extension Period and the payment of all amounts then due,
SunAmerica may commence a new Extension Period, subject to the above
requirements. Payments of accrued Distributions will be payable to Holders of
Preferred Securities as they appear on the books and records of the Trust on
the first record date after the end of the Extension Period.
(c) Distributions on the Preferred Securities will be payable
promptly by the Property Trustee (or other Paying Agent) upon receipt of
immediately available funds to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates. While the Preferred
Securities remain in book-entry only form, the relevant record dates shall be
one business day prior to the relevant Distribution date, and if the Preferred
Securities are no longer in book-entry only form, the relevant record dates
will be the March 15, June 15, September 15 and December 15 prior to the
relevant Distribution date, which record and payment dates correspond to the
record and interest payment dates on the Debentures. Distributions payable on
any Preferred Securities that are not punctually paid on any Distribution
payment date as a result of SunAmerica having failed to make the corresponding
interest payment on the Debentures will forthwith cease to be payable to the
person in whose name such Preferred Security is registered on the relevant
record date, and such defaulted Distribution will instead be payable to the
person in whose name such Preferred Security is registered on the special
record date established by the Regular Trustees, which record date shall
correspond to the special record date or other specified date determined in
accordance with the Indenture; provided, however, that Distributions shall not
be considered payable on any Distribution payment date falling within an
Extension Period unless SunAmerica has elected to make a full or partial
payment of interest accrued on the Debentures on such Distribution payment
date. Subject to any applicable laws and regulations and the provisions of
the Declaration, each payment in respect of the Preferred Securities will be
made as described paragraph 9 hereof. If any date on which Distributions are
payable on the Preferred Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date.
(d) All Distributions paid with respect to the Preferred
Securities and the Common Securities will be paid Pro Rata to the Holders
thereof entitled thereto. If an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to Distributions.
(e) In the event that there is any money or other property
held by or for the Trust that is not accounted for under the Declaration, such
money or property shall be distributed Pro Rata among the Holders of the
Preferred Securities and Common Securities.
3. Liquidation Distribution Upon Dissolution. In the event of
any voluntary or involuntary dissolution, winding-up or termination of the
Trust, the Holders of the Preferred Securities and Common Securities at the
date of the dissolution, winding-up or termination, as the case may be, will
be entitled to receive Pro Rata solely out of the assets of the Trust
available for distribution to Holders of Preferred Securities and Common
Securities after satisfaction of liabilities to creditors, an amount equal to
the aggregate of the stated liquidation amount of $25 per Preferred Security
and Common Security plus accrued and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, and after
satisfaction of liabilities to creditors, Debentures in an aggregate principal
amount equal to the aggregate stated liquidation amount of such Preferred
Securities and Common Securities and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on, such Preferred
Securities and Common Securities, shall be distributed Pro Rata to the Holders
of the Preferred Securities and Common Securities in exchange for such
Securities.
If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Preferred Securities and Common Securities shall
be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive
Liquidation Distributions upon any such dissolution Pro Rata with Holders of
Preferred Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to such Liquidation Distribution.
4. Redemption and Distribution of Debentures. The Preferred
Securities and Common Securities may only be redeemed if Debentures having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and Common Securities are repaid, redeemed or distributed
as set forth below:
(a) Upon the repayment of the Debentures, in whole or in
part, whether at maturity, upon redemption at any time or from time to time on
or after November 13, 2001 or under certain circumstances upon the occurrence
of a Tax Event (hereinafter defined), the proceeds of such repayment will be
promptly applied to redeem Pro Rata Preferred Securities and Common Securities
having an aggregate liquidation amount equal to the aggregate principal amount
of the Debentures so repaid or redeemed, upon not less than 30 nor more than
60 days' notice, at a redemption price of $25 per Preferred and Common
Security plus an amount equal to accrued and unpaid Distributions thereon to
the date of redemption, payable in cash (the "Redemption Price"). The date
of any such repayment or redemption of Preferred Securities and Common
Securities shall be established to coincide with the repayment or redemption
date of the Debentures.
(b) If fewer than all the outstanding Preferred Securities
and Common Securities are to be so redeemed, the Preferred Securities and the
Common Securities will be redeemed Pro Rata and the Preferred Securities to be
redeemed will be redeemed as described in paragraph 4(f)(ii) below. If a
partial redemption would result in the delisting of the Preferred Securities
by any national securities exchange or other organization on which the
Preferred Securities are then listed, SunAmerica pursuant to the Indenture
will only redeem Debentures in whole and, as a result, the Trust may only
redeem the Preferred Securities in whole.
(c) The Sponsor shall have the right at any time to dissolve
the Trust in which event the Regular Trustees shall, after satisfaction of
creditors, cause Debentures held by the Property Trustee having an aggregate
principal amount equal to the aggregate stated liquidation amount of and
accrued and unpaid interest equal to accrued and unpaid Distributions on, and
having the same record date for payment as the Preferred Securities and Common
Securities, to be distributed to the Holders of the Preferred Securities and
Common Securities on a Pro Rata basis in liquidation of such Holders'
interests in the Trust, within 90 days after notice of such dissolution is
given to the Holders.
If, at any time, a Tax Event shall occur or be continuing,
SunAmerica shall have the right at any time, upon not less than 30 nor more
than 60 days' notice, to redeem the Debentures in whole or in part for cash at
the Redemption Price within 90 days following the occurrence of such Tax
Event, and promptly following such redemption Preferred Securities and Common
Securities with an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed will be redeemed by the Trust
at the Redemption Price on a Pro Rata basis. The Common Securities will be
redeemed Pro Rata with the Preferred Securities, except that if an Event of
Default under the Indenture has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities with respect to
payment of the Redemption Price.
"Tax Event" means that the Regular Trustees shall have obtained
an opinion of nationally recognized independent tax counsel experienced in
such matters (a "Tax Event Opinion") to the effect that on or after November
7, 1996 as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing authority
thereof or therein, (b) any amendment to, or change in, an interpretation
or application of any such laws or regulations by any legislative body,
court, governmental agency or regulatory authority (including the enactment
of any legislation and the publication of any judicial decision or
regulatory determination), (c) any interpretation or pronouncement that
provides for a position with respect to such laws or regulations that
differs from the theretofore generally accepted position or (d) any action
taken by any governmental agency or regulatory authority, which amendment
or change is enacted, promulgated, issued or effective or which
interpretation or pronouncement is issued or announced or which action is
taken, in each case on or after November 7, 1996, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the
date thereof, subject to United States federal income tax with respect to
income accrued or received on the Debentures, (ii) the Trust is, or will be
within 90 days of the date thereof, subject to more than a de minimis
amount of taxes, duties or other governmental charges or (iii) interest
payable by SunAmerica on the Debentures is not, or within 90 days of the
date thereof will not be, deductible by SunAmerica for United States
federal income tax purposes (any Tax Event set forth in this clause (iii)
being a "Deductibility of Interest Tax Event").
On the date fixed for any distribution of Debentures, upon
dissolution of the Trust made under paragraph 4(c), (i) the Preferred
Securities will no longer be deemed to be outstanding and (ii) certificates
representing Preferred Securities will be deemed to represent beneficial
interests in the Debentures having an aggregate principal amount equal to the
stated liquidation amount of, and bearing accrued and unpaid interest equal to
accrued and unpaid Distributions on, such Preferred Securities until such
certificates are presented to SunAmerica or its agent for transfer or
reissuance.
(d) The Trust may not redeem fewer than all the outstanding
Preferred Securities unless all accrued and unpaid Distributions have been
paid on all Preferred Securities for all quarterly Distribution periods
terminating on or prior to the date of redemption.
(e) If Debentures are distributed to Holders of the Preferred
Securities, SunAmerica, pursuant to the terms of the Indenture, will use its
best efforts to have the Debentures listed on the New York Stock Exchange or
on such other exchange as the Preferred Securities were listed immediately
prior to the distribution of the Debentures.
(f) (i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for, the Preferred Securities and
Common Securities (a "Redemption/Distribution Notice") will be given by the
Regular Trustees on behalf of the Trust by mail to each Holder of Preferred
Securities and Common Securities to be redeemed or exchanged not less than 30
nor more than 60 days prior to the date fixed for redemption or exchange
thereof. For purposes of the calculation of the date of redemption or
exchange and the dates on which notices are given pursuant to this paragraph
(f)(i), a Redemption/Distribution Notice shall be deemed to be given on the
day such notice is first mailed by first-class mail, postage prepaid, to
Holders of Preferred Securities and Common Securities. Each Redemption/
Distribution Notice shall be addressed to the Holders of Preferred Securities
and Common Securities at the address of each such Holder appearing in the
books and records of the Trust. No defect in the Redemption/Distribution
Notice or in the mailing of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange proceedings with respect to
any other Holder.
(ii) In the event that fewer than all the outstanding
Preferred Securities are to be redeemed, the Preferred Securities to be
redeemed will be redeemed Pro Rata from each Holder of Preferred Securities,
it being understood that, in respect of Preferred Securities registered in the
name of and held of record by DTC (or successor Clearing Agency) or any other
nominee, the Preferred Securities will be redeemed from, and the distribution
of the proceeds of such redemption will be made to, each Clearing Agency
Participant (or person on whose behalf such nominee holds such securities) in
accordance with the procedures applied by such agency or nominee.
(iii) Subject to paragraph 9 hereof, if the Trust gives a
Redemption/ Distribution Notice in respect of a redemption of Preferred
Securities as provided in this paragraph 4 (which notice will be irrevocable)
then (A) while the Preferred Securities are in book-entry only form, with
respect to the Preferred Securities, by 12:00 noon, New York City time, on the
redemption date, provided that SunAmerica has paid the Property Trustee, in
immediately available funds, a sufficient amount of cash in connection with
the related redemption or maturity of the Debentures, the Property Trustee
will deposit irrevocably with DTC (or successor Clearing Agency) funds
sufficient to pay the applicable Redemption Price with respect to the
Preferred Securities and will give DTC (or successor Clearing Agency)
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities and (B) if the Preferred Securities are
issued in definitive form, with respect to the Preferred Securities and
provided that SunAmerica has paid the Property Trustee, in immediately
available funds, a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Property Trustee will pay the
relevant Redemption Price to the Holders of such Preferred Securities by
check mailed to the address of the relevant Holder appearing on the books
and records of the Trust on the redemption date. If a Redemption/
Distribution Notice shall have been given and funds deposited as required,
if applicable, then immediately prior to the close of business on the
redemption date, Distributions will cease to accrue on the Preferred
Securities called for redemption, such Preferred Securities will no longer
be deemed to be outstanding and all rights of Holders of such Preferred
Securities so called for redemption will cease, except the right of the
Holders of such Preferred Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Trustees nor the
Trust shall be required to register or cause to be registered the transfer
of any Preferred Securities which have been so called for redemption. If
any date fixed for redemption of Preferred Securities is not a Business
Day, then payment of the Redemption Price payable on such date will be made
on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made on
the immediately preceding Business Day, in each case with the same force
and effect as if made on such date fixed for redemption. If payment of the
Redemption Price in respect of Preferred Securities is improperly withheld
or refused and not paid either by the Property Trustee or by SunAmerica
pursuant to the Preferred Securities Guarantee, Distributions on such
Preferred Securities will continue to accrue, from the original redemption
date to the date of payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of calculating the
Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to DTC or its nominee (or any
successor Clearing Agency or its nominee) if the Global Certificates have been
issued or, if Definitive Preferred Security Certificates have been issued, to
the Holders of the Preferred Securities.
(v) Upon the date of dissolution of the Trust and distribution
of Debentures as a result of an election by the Sponsor to dissolve the Trust,
Preferred Security Certificates shall be deemed to represent beneficial
interests in the Debentures so distributed, and the Preferred Securities will
no longer be deemed outstanding and may be canceled by the Regular Trustees.
The Debentures so distributed shall have an aggregate principal amount equal
to the aggregate liquidation amount of the Preferred Securities so
distributed.
(vi) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), SunAmerica or any
of its subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
5. Voting Rights. (a) Except as provided under paragraph
5(b) below and as otherwise required by law and the Declaration, the Holders
of the Preferred Securities will have no voting rights.
(b) If (i) the Trust fails to make Distributions in full on
the Preferred Securities for 6 consecutive quarterly Distribution periods; or
(ii) an Event of Default occurs and is continuing (each, an "Appointment
Event"), then the Holders of the Preferred Securities, acting as a single
class, will be entitled by the vote of Holders of Preferred Securities
representing a Majority in liquidation amount of the Preferred Securities to
appoint a Special Regular Trustee in accordance with paragraph 5.2(a)(ii)(B)
of the Declaration. Any Holder of Preferred Securities (other than the
Sponsor or any Affiliate of the Sponsor) will have the right to nominate any
Person to be appointed as Special Regular Trustee. For purposes of
determining whether the Trust has failed to pay Distributions in full for 6
consecutive quarterly Distribution periods, Distributions shall be deemed
to remain in arrears, notwithstanding any payments in respect thereof,
until full cumulative Distributions have been or contemporaneously are paid
with respect to all quarterly Distribution periods terminating on or prior
to the date of payment of such cumulative Distributions. Not later than 30
days after such right to appoint a Special Regular Trustee arises, the
Regular Trustees will convene a meeting for the purpose of appointing a
Special Regular Trustee. If the Regular Trustees fail to convene such
meeting within such 30-day period, the Holders of Preferred Securities
representing 10% in liquidation amount of the outstanding Preferred
Securities will be entitled to convene such meeting in accordance with
Section 12.2 of the Declaration. The record date for such meeting will be
the close of business on the Business Day next preceding the day on which
notice of the meeting is sent to Holders of Preferred Securities. The
provisions of the Declaration relating to the convening and conduct of the
meetings of the Holders will apply with respect to any such meeting. If,
at any such meeting, Holders of less than a Majority in liquidation amount
of Preferred Securities entitled to vote for the appointment of a Special
Regular Trustee vote for such appointment, no Special Regular Trustee shall
be appointed. Any Special Regular Trustee may be removed without cause at
any time by the Holders of Preferred Securities representing a Majority in
liquidation amount of the Preferred Securities in accordance with Section
5.2(a)(ii)(B) of the Declaration. The Holders of 10% in liquidation amount
of the Preferred Securities will be entitled to convene such a meeting in
accordance with Section 12.2 of the Declaration. The record date for such
meeting will be the close of business on the Business Day next preceding
the day on which notice of the meeting is sent to Holders of Preferred
Securities. Any Special Regular Trustee appointed shall cease to be a
Special Regular Trustee as provided in Section 5.2(c) of the Declaration.
Notwithstanding the appointment of any such Special Regular Trustee,
SunAmerica shall retain all rights under the Indenture, including the right
to extend the interest payment period on Debentures, and any extension for
a period not exceeding 20 quarterly interest periods will not constitute an
Event of Default under the Indenture.
If any proposed amendment to the Declaration provides for, or
the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Property Trustee, in
connection with the redemption of Preferred Securities as a consequence of a
redemption of Debentures, then the Holders of outstanding Securities will be
entitled to vote on such amendment or proposal as a class and such amendment
or proposal shall not be effective except with the approval of the Holders of
Securities representing 66-2/3% in liquidation amount of such Securities;
provided, however, that (A) if any amendment or proposal referred to in clause
(i) above would adversely affect only the Preferred Securities or the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of 66-2/3% in liquidation amount of such class of
Securities, (B) the rights of Holders of Preferred Securities under Article V
of the Declaration to appoint and remove a Special Regular Trustee shall not
be amended without the consent of each Holder of Preferred Securities, and (C)
amendments to the Declaration shall be subject to such further requirements as
are set forth in Sections 12.1 and 12.2 of the Declaration.
In the event the consent of the Property Trustee, as the holder
of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Property Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination. The
Property Trustee shall vote with respect to such amendment, modification or
termination as directed by a Majority in liquidation amount of the Securities
voting together as a single class; provided that where such amendment,
modification or termination of the Indenture requires the consent or vote of
(1) holders of Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (2) each holder of
Debentures, the Property Trustee may only vote with respect to that amendment,
modification or termination as directed by, in the case of clause (1) above,
the vote of Holders of Securities representing such specified percentage of
the aggregate liquidation amount of the Securities, or, in the case of
clause (2) above, each Holder of Securities; and provided, further, that
the Property Trustee shall be under no obligation to take any action in
accordance with the directions of the Holders of Securities unless the
Property Trustee shall have received, at the expense of the Sponsor, an
opinion of nationally recognized independent tax counsel recognized as
expert in such matters to the effect that the Trust will not be classified
for United States federal income tax purposes as an association taxable as
a corporation or a partnership on account of such action and will be
treated as a grantor trust for United States federal income tax purposes
following such action.
Subject to Section 2.6 of the Declaration, and the provisions
of this and the next succeeding paragraph, the Holders of a Majority in
liquidation amount of the Preferred Securities, voting separately as a class
shall have the right to (A) on behalf of all Holders of Preferred Securities,
waive any past default that is waivable under the Declaration (subject to, and
in accordance with the Declaration) and (B) direct the time, method and place
of conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee, as the holder
of the Debentures, to (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising
any trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 6.06 of
the Indenture, or (iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable; provided
that where the taking of any action under the Indenture requires the consent
or vote of (1) holders of Debentures representing a specified percentage
greater than a majority in principal amount of the Debentures or (2) each
holder of Debentures, the Property Trustee may only take such action if
directed by, in the case of clause (1) above, the vote of Holders of Preferred
Securities representing such specified percentage of the aggregate liquidation
amount of the Preferred Securities, or, in the case of clause (2) above, each
Holder of Preferred Securities. The Property Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of the
Preferred Securities. Other than with respect to directing the time, method
and place of conducting any proceeding for any remedy available to the
Property Trustee or the Debenture Trustee as set forth above, the Property
Trustee shall be under no obligation to take any of the foregoing actions at
the direction of the Holders of Preferred Securities unless the Property
Trustee shall have received, at the expense of the Sponsor, an opinion of
nationally recognized independent tax counsel recognized as expert in such
matters to the effect that the Trust will not be classified for United States
federal income tax purposes as an association taxable as a corporation or a
partnership on account of such action and will be treated as a grantor trust
for United States federal income tax purposes following such action. If the
Property Trustee fails to enforce its rights under the Declaration (including,
without limitation, its rights, powers and privileges as a holder of the
Debentures under the Indenture), any Holder of Preferred Securities may, after
a period of 30 days has elapsed from such Holder's written request to the
Property Trustee to enforce such rights, institute a legal proceeding directly
against SunAmerica to enforce the Property Trustee's rights under the
Declaration, without first instituting a legal proceeding against the Property
Trustee or any other Person.
A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities will
constitute a waiver of the corresponding Event of Default under the
Declaration in respect of the Securities.
Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of Preferred
Securities convened for such purpose, at a meeting of all of the Holders of
Securities of the Trust or pursuant to written consent. The Regular Trustees
will cause a notice of any meeting at which Holders of Preferred Securities
are entitled to vote, or of any matter upon which action by written consent of
such Holders is to be taken, to be mailed to each Holder of record of
Preferred Securities. Each such notice will include a statement setting
forth (i) the date of such meeting or the date by which such action is to
be taken, (ii) a description of any resolution proposed for adoption at
such meeting on which such Holders are entitled to vote or of such matter
upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities in
accordance with the Declaration.
Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above,
any of the Preferred Securities at such time that are owned by SunAmerica
or by any entity directly or indirectly controlling or controlled by or
under direct or indirect common control with SunAmerica shall not be
entitled to vote or consent and shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
Except as provided in this paragraph 5, Holders of the
Preferred Securities will have no rights to increase or decrease the number of
Trustees or to appoint, remove or replace a Trustee, which voting rights are
vested solely in the Holders of the Common Securities.
6. Pro Rata Treatment. A reference in these terms of the
Preferred Securities to any payment, distribution or treatment as being "Pro
Rata" shall mean pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding
unless, in relation to a payment, an Event of Default has occurred and is
continuing, in which case any funds available to make such payment shall be
paid first to each Holder of the Preferred Securities pro rata according to
the aggregate liquidation amount of Preferred Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Preferred
Securities outstanding, and only after satisfaction of all amounts owed to
the Holders of the Preferred Securities, to each Holder of Common
Securities pro rata according to the aggregate liquidation amount of Common
Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Common Securities outstanding.
7. Ranking. The Preferred Securities rank pari passu and
payment thereon will be made Pro Rata with, the Common Securities except that
where an Event of Default occurs and is continuing, the rights of Holders of
Preferred Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise rank in priority to the rights of Holders
of the Common Securities.
8. Mergers, Consolidations or Amalgamations. The Trust may
not consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets to, any corporation or other body.
9. Transfer, Exchange, Method of Payments. Payment of
Distributions and payments on redemption of the Preferred Securities will be
payable, the transfer of the Preferred Securities will be registrable, and
Preferred Securities will be exchangeable for Preferred Securities of other
denominations of a like aggregate liquidation amount, at the principal
corporate trust office of the Property Trustee in The City of New York;
provided that payment of Distributions may be made at the option of the
Regular Trustees on behalf of the Trust by check mailed to the address of
the persons entitled thereto and that the payment on redemption of any
Preferred Security will be made only upon surrender of such Preferred
Security to the Property Trustee.
10. Acceptance of Indenture and Preferred Guarantee. Each
Holder of Preferred Securities, by the acceptance thereof, agrees to the
provisions of (i) the Preferred Guarantee, including the subordination
provisions therein and (ii) the Indenture and the Debentures, including the
subordination provisions of the Indenture.
11. No Preemptive Rights. The Holders of Preferred Securities
shall have no preemptive rights to subscribe to any additional Preferred
Securities or Common Securities.
12. Miscellaneous. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the
Indenture to a Holder without charge on written request to the Trust at its
principal place of business.
Annex I
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT
- - This Preferred Security is a Global Certificate within the meaning of the
Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company ("DTC") or a nominee of DTC. This Preferred Security
is exchangeable for Preferred Securities registered in the name of a person
other than DTC or its nominee only in the limited circumstances described in
the Declaration and no transfer of this Preferred Security (other than a
transfer of this Preferred Security as a whole by DTC to a nominee of DTC or
by a nominee of DTC to DTC or another nominee of DTC) may be registered except
in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
the Trust or its agent for registration of transfer, exchange or payment, and
any Preferred Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.]
Number [ ] Preferred Securities
B-
CUSIP NO. 86702N208
Certificate Evidencing Preferred Securities
of
SunAmerica Capital Trust III
8.30% Trust Originated Preferred Securities
(liquidation amount $25 per Preferred Security)
SunAmerica Capital Trust III, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby
certifies that _________ (the "Holder") is the registered owner of _____
(______) preferred securities of the Trust representing undivided beneficial
interests in the assets of the Trust designated the 8.30% Trust Originated
Preferred Securities (liquidation amount $25 per Preferred Security) (the
"Preferred Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer. The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued
and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Declaration of Trust of the Trust dated as of November
13, 1996, as the same may be amended from time to time (the "Declaration")
including the designation of the terms of Preferred Securities as set forth in
Exhibit B thereto. The Preferred Securities and the Common Securities issued
by the Trust pursuant to the Declaration represent undivided beneficial
interests in the assets of the Trust, including the Debentures (as defined in
the Declaration) issued by SunAmerica Inc., a Maryland corporation
("SunAmerica"), to the Trust pursuant to the Indenture referred to in the
Declaration. The Holder is entitled to the benefits of the Guarantee
Agreement of SunAmerica dated as of November 13, 1996 (the "Guarantee") to the
extent provided therein. The Trust will furnish a copy of the Declaration,
the Guarantee and the Indenture to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
The Holder of this Certificate, by accepting this Certificate,
is deemed to have (i) agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment
to all Senior Debt (as defined in the Indenture) as and to the extent provided
in the Indenture and (ii) agreed to the terms of the Guarantee, including that
the Guarantee is subordinate and junior in right of payment to all other
liabilities of SunAmerica, including the Debentures, except those made pari
passu or subordinate by their terms, and senior to all capital stock now or
hereafter issued by SunAmerica and to any guarantee now or hereafter entered
into by SunAmerica in respect of any of its capital stock.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed
this certificate this ____ day of November, 1996.
SUNAMERICA CAPITAL TRUST III
By:_________________________, as trustee
Name: James R. Belardi
Title: Trustee
By:_________________________, as trustee
Name: Scott H. Richland
Title: Trustee
By:_________________________, as trustee
Name: Scott L. Robinson
Title: Trustee
Dated:
Countersigned and Registered:
The Bank of New York,
Transfer Agent and Registrar
By:___________________________
Authorized Signature
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Insert assignee's social security or tax identification number)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: _________________________
Signature: ____________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S)
AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
EXHIBIT C
TERMS OF
COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration
of Trust of SunAmerica Capital Trust III dated as of November 13, 1996 (as
amended from time to time, the "Declaration"), the designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth below (each capitalized term used but not
defined herein having the meaning set forth in the Declaration):
1. Designation and Number. Common Securities of the Trust
with an aggregate liquidation amount in the assets of the Trust of Ten Million
Six Hundred Seventy Thousand One Hundred Twenty-Five Dollars ($10,670,125)
(representing an amount equal to at least 3% of the total capital of the
Trust), and a liquidation amount in the assets of the Trust of $25 per Common
Security, are hereby designated as "8.30% Trust Originated Common Securities".
The Common Security Certificates evidencing the Common Securities shall be
substantially in the form attached hereto as Annex I, with such changes and
additions thereto or deletions therefrom as may be required by ordinary usage,
custom or practice. The Common Securities are to be issued and sold to
SunAmerica Inc. ("SunAmerica") in consideration of $10,670,125 in cash. In
connection with the issuance and sale of the Preferred Securities and the
Common Securities, the Trust will purchase as trust assets Debentures of
SunAmerica having an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities and Common Securities so
issued, and bearing interest at an annual rate equal to the annual
Distribution rate on the Preferred Securities and Common Securities and having
payment and redemption provisions which correspond to the payment and
redemption provisions of the Preferred Securities and Common Securities.
2. Distributions. (a) Periodic distributions payable on each
Common Security will be fixed at a rate per annum of 8.30% (the "Coupon Rate")
of the stated liquidation amount of $25 per Common Security. Distributions in
arrears for more than one quarter will bear interest at the rate per annum of
8.30% thereof (to the extent permitted by applicable law), compounded
quarterly. The term "Distributions" as used in these terms means such
periodic cash distributions and any such interest payable unless otherwise
stated. A Distribution will be made by the Property Trustee only to the
extent that interest payments are made in respect of the Debentures held by
the Property Trustee. The amount of Distributions payable for any period
will be computed for any full quarterly Distribution period on the basis of
a 360-day year of twelve 30-day months, and for any period shorter than a
full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days
elapsed in such a 30-day month.
(b) Distributions on the Common Securities will be cumulative,
will accrue from November 13, 1996 and will be payable quarterly in arrears,
on March 30, June 30, September 30 and December 30 of each year, commencing on
December 30, 1996, except as otherwise described below, but only if and to the
extent that interest payments are made in respect of the Debentures held by
the Property Trustee. So long as SunAmerica shall not be in default in the
payment of interest on the Debentures, SunAmerica has the right under the
Indenture for the Debentures to defer payments of interest by extending the
interest payment period from time to time on the Debentures for a period not
exceeding 20 consecutive quarterly interest periods (each, an "Extension
Period") and, as a consequence, quarterly Distributions will continue to
accrue with interest thereon (to the extent permitted by applicable law) at
the rate of 8.30% per annum, compounded quarterly during any such Extension
Period. Prior to the termination of any such Extension Period, SunAmerica may
further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed
20 consecutive quarterly interest periods. Upon the termination of any
Extension Period and the payment of all amounts then due, SunAmerica may
commence a new Extension Period, subject to the above requirements. Payments
of accrued Distributions will be payable to Holders of Common Securities as
they appear on the books and records of the Trust on the first record date
after the end of the Extension Period.
(c) Distributions on the Common Securities will be payable
promptly by the Property Trustee (or other Paying Agent) upon receipt of
immediately available funds to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates which will be one
business day prior to the relevant Distribution date unless the Preferred
Securities are no longer in book-entry only form in which event the relevant
record dates will be the March 15, June 15, September 15 and December 15 prior
to the relevant Distribution date, which record and payment dates correspond
to the record and interest payment dates on the Debentures. Distributions
payable on any Common Securities that are not punctually paid on any
Distribution date as a result of SunAmerica having failed to make the
corresponding interest payment on the Debentures will forthwith cease to be
payable to the person in whose name such Common Security is registered on the
relevant record date, and such defaulted Distribution will instead be payable
to the person in whose name such Common Security is registered on the special
record date established by the Regular Trustees, which record date shall
correspond to the special record date or other specified date determined in
accordance with the Indenture; provided, however, that Distributions shall not
be considered payable on any Distribution payment date falling within an
Extension Period unless SunAmerica has elected to make a full or partial
payment of interest accrued on the Debentures on such Distribution payment
date. Subject to any applicable laws and regulations and the provisions of
the Declaration, each payment in respect of the Common Securities will be made
as described in paragraph 9 hereof. If any date on which Distributions are
payable on the Common Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date.
(d) All Distributions paid with respect to the Common
Securities and the Preferred Securities will be paid Pro Rata to the Holders
thereof entitled thereto. If an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to Distributions.
(e) In the event that there is any money or other property held
by or for the Trust that is not accounted for under the Declaration, such
money or property shall be distributed Pro Rata among the Holders of the
Preferred Securities and Common Securities.
3. Liquidation Distribution Upon Dissolution. In the event of
any voluntary or involuntary dissolution, winding-up or termination of the
Trust, the Holders of the Preferred Securities and Common Securities at the
date of the dissolution, winding-up or termination, as the case may be, will
be entitled to receive Pro Rata solely out of the assets of the Trust
available for distribution to Holders of Preferred Securities and Common
Securities, after satisfaction of liabilities to creditors, an amount equal to
the aggregate of the stated liquidation amount of $25 per Preferred Security
and Common Security plus accrued and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, and after
satisfaction of liabilities to creditors, Debentures in an aggregate principal
amount equal to the aggregate stated liquidation amount of such Preferred
Securities and Common Securities bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on, such Preferred
Securities and Common Securities, shall be distributed Pro Rata to the Holders
of the Preferred Securities and Common Securities in exchange for such
Securities.
If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Preferred Securities and Common Securities shall
be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive
Liquidation Distributions upon any such dissolution Pro Rata with Holders of
Preferred Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to such Liquidation Distribution.
4. Redemption and Distribution of Debentures. The Preferred
Securities and Common Securities may only be redeemed if Debentures having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and Common Securities are repaid, redeemed or distributed
as set forth below:
(a) Upon the repayment of the Debentures, in whole or in
part, whether at maturity, upon redemption at any time or from time to time on
or after November 13, 2001 or under certain circumstances upon the occurrence
of a Tax Event, the proceeds of such repayment will be promptly applied to
redeem Pro Rata Preferred Securities and Common Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures
so repaid or redeemed, upon not less than 30 nor more than 60 days' notice, at
a redemption price of $25 per Preferred and Common Security plus an amount
equal to accrued and unpaid Distributions thereon to the date of redemption,
payable in cash (the "Redemption Price"). The date of any such repayment or
redemption of Preferred Securities and Common Securities shall be established
to coincide with the repayment or redemption date of the Debentures.
(b) If fewer than all the outstanding Preferred Securities
and Common Securities are to be so redeemed, the Preferred Securities and the
Common Securities will be redeemed Pro Rata and the Common Securities to be
redeemed will be redeemed as described in paragraph 4(e)(ii) below. If a
partial redemption would result in the delisting of the Preferred Securities
by any national securities exchange or other organization on which the
Preferred Securities are then listed, SunAmerica pursuant to the Indenture
will only redeem Debentures in whole and, as a result, the Trust may only
redeem the Common Securities in whole.
(c) The Sponsor shall have the right at any time to dissolve
the Trust in which event the Regular Trustees shall, after satisfaction of
creditors, cause Debentures held by the Property Trustee having an aggregate
principal amount equal to the aggregate stated liquidation amount of and
accrued and unpaid interest equal to accrued and unpaid Distributions on, and
having the same record date for payment as the Preferred Securities and Common
Securities, to be distributed to the Holders of the Preferred Securities and
Common Securities on a Pro Rata basis in liquidation of such Holders'
interests in the Trust, within 90 days following notice of such dissolution
given to Holders.
If, at any time, a Tax Event shall occur or be continuing,
SunAmerica shall have the right at any time, upon not less than 30 nor more
than 60 days' notice, to redeem the Debentures in whole or in part for cash at
the Redemption Price within 90 days following the occurrence of such Tax
Event, and promptly following such redemption Preferred Securities and Common
Securities with an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed will be redeemed by the Trust
at the Redemption Price on a Pro Rata basis. The Common Securities will be
redeemed Pro Rata with the Preferred Securities, except that if an Event of
Default under the Indenture has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities with respect to
payment of the Redemption Price.
"Tax Event" means that the Regular Trustees shall have obtained
an opinion of nationally recognized independent tax counsel experienced in
such matters (a "Tax Event Opinion") to the effect that on or after
November 7, 1996 as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, (b) any amendment to, or change in, an
interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position
or (d) any action taken by any governmental agency or regulatory authority,
which amendment or change is enacted, promulgated, issued or effective or
which interpretation or pronouncement is issued or announced or which
action is taken, in each case on or after November 7, 1996, there is more
than an insubstantial risk that (i) the Trust is, or will be within 90 days
of the date thereof, subject to United States federal income tax with
respect to income accrued or received on the Debentures, (ii) the Trust is,
or will be within 90 days of the date thereof, subject to more than a de
minimis amount of taxes, duties or other governmental charges or (iii)
interest payable by SunAmerica on the Debentures is not, or within 90 days
of the date thereof will not be, deductible by SunAmerica for United States
federal income tax purposes (any Tax Event set forth in this clause (iii)
being a "Deductibility of Interest Tax Event").
On the date fixed for any distribution of Debentures, upon
dissolution of the Trust made under paragraph 4(c), (i) the Common Securities
will no longer be deemed to be outstanding and (ii) any certificates
representing Common Securities will be deemed to represent beneficial
interests in the Debentures having an aggregate principal amount equal to the
stated liquidation amount of, and bearing accrued and unpaid interest equal to
accrued and unpaid Distributions on, such Common Securities until such
certificates are presented to SunAmerica or its agent for transfer or
reissuance.
(d) The Trust may not redeem fewer than all the outstanding
Common Securities unless all accrued and unpaid Distributions have been paid
on all Common Securities for all quarterly Distribution periods terminating on
or prior to the date of redemption.
(e)(i) Notice of any redemption of, or notice of distribution
of Debentures in exchange for, the Preferred Securities and Common Securities
(a "Redemption/Distribution Notice") will be given by the Regular Trustees on
behalf of the Trust by mail to each Holder of Preferred Securities and Common
Securities to be redeemed or exchanged not less than 30 nor more than 60 days
prior to the date fixed for redemption or exchange thereof. For purposes of
the calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this paragraph (e)(i), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of Preferred Securities and
Common Securities. Each Redemption/Distribution Notice shall be addressed to
the Holders of Preferred Securities and Common Securities at the address of
each such Holder appearing in the books and
records of the Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any other
Holder.
(ii) In the event that fewer than all the outstanding Common
Securities are to be redeemed, the Common Securities to be redeemed will be
redeemed Pro Rata from each Holder of Common Securities (subject to adjustment
to eliminate fractional Common Securities).
(iii) If the Trust gives a Redemption/ Distribution Notice in
respect of a redemption of Common Securities as provided in this paragraph 4
(which notice will be irrevocable) then immediately prior to the close of
business on the redemption date, provided that SunAmerica has paid to the
Property Trustee in immediately available funds a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures,
Distributions will cease to accrue on the Common Securities called for
redemption, such Common Securities will no longer be deemed to be outstanding
and all rights of Holders of such Common Securities so called for redemption
will cease, except the right of the Holders of such Common Securities to
receive the Redemption Price, but without interest on such Redemption Price.
Neither the Trustees nor the Trust shall be required to register or cause to
be registered the transfer of any Common Securities which have been so called
for redemption. If any date fixed for redemption of Common Securities is not
a Business Day, then payment of the Redemption Price payable on such date will
be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date fixed for redemption. If payment of the
Redemption Price in respect of Common Securities is improperly withheld or
refused and not paid by the Property Trustee, Distributions on such Common
Securities will continue to accrue, from the original redemption date to the
date of payment, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to the Holders of the Common
Securities.
(v) Upon the date of dissolution of the Trust and distribution
of Debentures as a result of an election by the Sponsor to dissolve the Trust,
Common Security Certificates shall be deemed to represent beneficial interests
in the Debentures so distributed, and the Common Securities will no longer be
deemed outstanding and may be canceled by the Regular Trustees. The
Debentures so distributed shall have an aggregate principal amount equal to
the aggregate liquidation amount of the Common Securities so distributed.
5. Voting Rights. (a) Except as provided under paragraph
5(b) below and as otherwise required by law and the Declaration, the Holders
of the Common Securities will have no voting rights.
(b) Except as provided in the Declaration with respect to a
Special Regular Trustee, Holders of Common Securities have the sole right
under the Declaration to increase or decrease the number of Trustees, and to
appoint, remove or replace a Trustee, any such increase, decrease,
appointment, removal or replacement to be approved by Holders of Common
Securities representing a Majority in liquidation amount of the Common
Securities.
If any proposed amendment to the Declaration provides for, or
the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Property Trustee, in
connection with the redemption of Common Securities as a consequence of a
redemption of Debentures, then the Holders of outstanding Securities will be
entitled to vote on such amendment or proposal as a class and such amendment
or proposal shall not be effective except with the approval of the Holders of
Securities representing 66-2/3% in liquidation amount of such Securities;
provided, however, that (A) if any amendment or proposal referred to in clause
(i) above would adversely affect only the Preferred Securities or the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of 66-2/3% in liquidation amount of such class of
Securities, (B) the rights of Holders of Common Securities under Article V of
the Declaration to increase or decrease the number of, and to appoint, replace
or remove, Trustees (other than a Special Regular Trustee) shall not be
amended without the consent of each Holder of Common Securities, and (C)
amendments to the Declaration shall be subject to such further requirements as
are set forth in Sections 12.1 and 12.2 of the Declaration.
In the event the consent of the Property Trustee as the holder
of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Property Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination. The
Property Trustee shall vote with respect to such amendment, modification or
termination as directed by a Majority in liquidation amount of the Securities
voting together as a single class; provided that where such amendment,
modification or termination of the Indenture requires the consent or vote of
(1) holders of Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (2) each holder of
Debentures, the Property Trustee may only vote with respect to that amendment,
modification or termination as directed by, in the case of clause (1) above,
the vote of Holders of Securities representing such specified percentage of the
aggregate liquidation amount of the Securities, or, in the case of clause (2)
above, each Holder of Securities; and provided, further, that the Property
Trustee shall be under no obligation to take any action in accordance with the
directions of the Holders of the Securities unless the Property Trustee shall
have received, at the expense of the Sponsor, an opinion of nationally
recognized independent tax counsel recognized as an expert in such matters to
the effect that the Trust will not be classified for United States federal
income tax purposes as an association taxable as a corporation or a
partnership on account of such action and will be treated as a grantor trust
for United States federal income tax purposes following such action.
Subject to Section 2.6 of the Declaration, and the provisions
of this and the next succeeding paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class
shall have the right to (A) on behalf of all Holders of Common Securities,
waive any past default that is waivable under the Declaration (subject to, and
in accordance with the Declaration) and (B) direct the time, method, and place
of conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee, as holder of
the Debentures, to (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising
any trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under Section 6.06 of the Indenture, or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and
payable; provided that where the taking of any action under the Indenture
requires the consent or vote of (1) holders of Debentures representing a
specified percentage greater than a majority in principal amount of the
Debentures or (e) each holder of Debentures, the Property Trustee may only
take such action if directed by, in the case of clause (1) above, the vote of
Holders of Common Securities representing such specified percentage of the
aggregate liquidation amount of the Common Securities, or, in the case of
clause (2) above, each Holder of Common Securities. Pursuant to this
paragraph, the Property Trustee shall not revoke, or take any action
inconsistent with, any action previously authorized or approved by a vote of
the Holders of the Preferred Securities, and shall not take any action in
accordance with the direction of the Holders of the Common Securities under
this paragraph if the action is prejudicial to the Holders of Preferred
Securities. Other than with respect to directing the time, method and place
of conducting any proceeding for any remedy available to the Property Trustee
or the Debenture Trustee as set forth above, the Property Trustee shall be
under no obligation to take any of the foregoing actions at the direction
of the Holders of Common Securities unless the Properties Trustee shall
have received, at the expense of the Sponsor, an opinion of nationally
recognized independent tax counsel recognized as expert in such matters to
the effect that the Trust will not be classified for United States federal
income tax purposes as an association taxable as a corporation or a
partnership on account of such action and will be treated as a grantor
trust for United States income tax purposes following such action.
Notwithstanding any other provision of these terms, each Holder
of Common Securities will be deemed to have waived any Event of Default with
respect to the Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived by
the Holders of Preferred Securities as provided in the Declaration or
otherwise eliminated, and until all Events of Default with respect to the
Preferred Securities have been so cured, waived by the Holders of Preferred
Securities or otherwise eliminated, the Property Trustee will be deemed to be
acting solely on behalf of the Holders of Preferred Securities and only the
Holders of the Preferred Securities will have the right to direct the Property
Trustee in accordance with the terms of the Declaration or of the Securities.
In the event that any Event of Default with respect to the Preferred
Securities is waived by the Holders of Preferred Securities as provided in the
Declaration, the Holders of Common Securities agree that such waiver shall
also constitute the waiver of such Event of Default with respect to the Common
Securities for all purposes under the Declaration without any further act,
vote or consent of the Holders of the Common Securities.
A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities will
constitute a waiver of the corresponding Event of Default under the
Declaration in respect of the Securities.
Any required approval of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities of the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the
date by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to
vote or of such matter upon which written consent is sought and (iii)
instructions for the delivery of proxies or consents.
No vote or consent of the Holders of Common Securities will be
required for the Trust to redeem and cancel Common Securities in accordance
with the Declaration.
6. Pro Rata Treatment. A reference in these terms of the
Common Securities to any payment, distribution or treatment as being "Pro
Rata" shall mean pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding
unless, in relation to a payment, an Event of Default has occurred and is
continuing, in which case any funds available to make such payment shall be
paid first to each Holder of the Preferred Securities pro rata according to
the aggregate liquidation amount of Preferred Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Preferred Securities, to each Holder of Common Securities pro rata
according to the aggregate liquidation amount of Common Securities held by the
relevant Holder relative to the aggregate liquidation amount of all Common
Securities outstanding.
7. Ranking. The Common Securities rank pari passu with the
Preferred Securities except that where an Event of Default occurs and is
continuing, the rights of Holders of Common Securities to payment in respect
of Distributions and payments upon liquidation, redemption or otherwise are
subordinate to the rights of Holders the Preferred Securities.
8. Mergers, Consolidations or Amalgamations. The Trust may
not consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets to, any corporation or other body.
9. Transfers, Exchanges, Method of Payments. Payment of
Distributions and payments on redemption of the Common Securities will be
payable, the transfer of the Common Securities will be registrable, and Common
Securities will be exchangeable for Common Securities of other denominations
of a like aggregate liquidation amount, at the principal corporate trust
office of the Property Trustee in The City of New York; provided that payment
of Distributions may be made at the option of the Regular Trustees on behalf
of the Trust by check mailed to the address of the persons entitled thereto
and that the payment on redemption of any Common Security will be made only
upon surrender of such Common Security to the Property Trustee.
Notwithstanding the foregoing, transfers of Common Securities are subject to
conditions set forth in Section 9.1(c) of the Declaration.
10. Acceptance of Indenture. Each Holder of Common
Securities, by the acceptance thereof, agrees to the provisions of the
Indenture and the Debentures, including the subordination provisions thereof.
11. No Preemptive Rights. The Holders of Common Securities
shall have no preemptive rights to subscribe to any additional Common
Securities or Preferred Securities.
12. Miscellaneous. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the
Indenture to a Holder without charge on written request to the Trust at its
principal place of business.
Annex I
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
Certificate Number Number of Common Securities
C-1 [____________]
Certificate Evidencing Common Securities
of
SunAmerica Capital Trust III
8.30% Trust Originated Common Securities
(liquidation amount $25 per Common Security)
SunAmerica Capital Trust III, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
SunAmerica Inc. (the "Holder") is the registered owner of ______________
(__________) common securities of the Trust representing undivided beneficial
interests in the assets of the Trust designated the 8.30% Trust Originated
Common Securities (liquidation amount $25 per Common Security) (the "Common
Securities"). The Common Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of
this certificate duly endorsed and in proper form for transfer and
satisfaction of the other conditions set forth in the Declaration (as defined
below) including, without limitation Section 9.1(c) thereof. The
designations, rights, privileges, restrictions, preferences and other terms
and provisions of the Common Securities are set forth in, and this certificate
and the Common Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Declaration of Trust of the Trust dated as of November 13, 1996, as the same
may be amended from time to time (the "Declaration") including the designation
of the terms of Common Securities as set forth in Exhibit C thereto. The
Common Securities and the Preferred Securities issued by the Trust pursuant to
the Declaration represent undivided beneficial interests in the assets of the
Trust, including the Debentures (as defined in the Declaration) issued by
SunAmerica Inc., a Maryland corporation, to the Trust pursuant to the
Indenture referred to in the Declaration. The Trust will furnish a copy of the
Declaration and the Indenture to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
The Holder of this Certificate, by accepting this Certificate,
is deemed to have agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment
to all Senior Debt (as defined in the Indenture) as and to the extent provided
in the Indenture.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed
this certificate this 13th day of November, 1996.
SUNAMERICA CAPITAL TRUST III
By________________________, as trustee
Name: James R. Belardi
Title: Trustee
By:_________________________, as trustee
Name: Scott H. Richland
Title: Trustee
By_________________________, as trustee
Name: Scott L. Robinson
Title: Trustee
Dated:
Countersigned and Registered:
The Bank of New York,
Transfer Agent and Registrar
By:___________________________
Authorized Signature
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Insert assignee's social security or tax identification number)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
______________________________________________________________________________
______________________________________________________________________________
_______________________________________________________________________ agent
to transfer this Common Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date: ________________________
Signature: _________________________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
EXHIBIT 4.16
- ------------------------------------------------------------------------------
SUNAMERICA INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
-------------------
FOURTH SUPPLEMENTAL INDENTURE
Dated as of November 13, 1996
TO
INDENTURE
Dated as of March 15, 1995
-------------------
8.30% Junior Subordinated Debentures
Due 2045
- -----------------------------------------------------------------------------
FOURTH SUPPLEMENTAL INDENTURE, dated as of the 13th day of
November 1996 (the "Fourth Supplemental Indenture"), between SUNAMERICA INC.,
a corporation duly organized and existing under the laws of the State of
Maryland (hereinafter sometimes referred to as the "Company") and The First
National Bank of Chicago, a national banking association, as trustee
(hereinafter sometimes referred to as the "Trustee") under the Indenture dated
as of March 15, 1995 (as amended by a Supplemental Indenture dated as of
October 28, 1996) between the Company and the Trustee (as so amended, the
"Indenture"); as set forth in Section 7.01 hereto and except as otherwise set
forth herein, all terms used and not defined herein are used as defined in the
Indenture),
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of its junior subordinated
debentures (the "Debentures"), said Debentures to be issued from time to time
in series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debentures to
be known as its 8.30% Junior Subordinated Debentures due 2045 (said series
being hereinafter referred to as the "Series 8.30% Debentures"), the form and
substance of such Series 8.30% Debentures and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this
Fourth Supplemental Indenture; and
WHEREAS, the Company has caused to be formed SunAmerica Capital
Trust III ("SunAmerica Capital III") as a statutory business trust under the
Business Trust Act of the State of Delaware (12 Del. Code Section 3801 et
seq.) pursuant to a declaration of trust dated August 31, 1995 (the "Original
Declaration") and the filing of a certificate of trust with the Secretary of
State of the State of Delaware on September 6, 1995; and
WHEREAS, the Original Declaration is to be amended and restated
in its entirety pursuant to an Amended and Restated Declaration of Trust dated
as of November 13, 1996 (such Amended and Restated Declaration of Trust, as
amended from time to time, the "Declaration of Trust"); and
WHEREAS, SunAmerica Capital III desires to issue its 8.30%
Trust Originated Preferred Securities (the "Preferred Securities") and sell
such Preferred Securities to initial purchasers; and
WHEREAS, in connection with such purchases of Preferred
Securities and the related purchase by the Company of the Common Securities
(as defined in the Declaration of Trust) of SunAmerica Capital III, SunAmerica
Capital III will purchase as trust assets Series 8.30% Debentures; and
WHEREAS, pursuant to the Declaration of Trust, the legal title
to the Series 8.30% Debentures shall be owned and held of record in the name
of The Bank of New York or its successor under the Declaration of Trust, as
Property Trustee (the "Property Trustee"), in trust for the benefit of holders
of the Preferred Securities and the Common Securities; and
WHEREAS, the Company has the right at any time to cause
SunAmerica Capital III to be dissolved and cause to be distributed to the
holders of the Preferred Securities and Common Securities, on a Pro Rata basis
(determined as provided in the terms of the Preferred Securities and Common
Securities attached as Exhibits B and C to the Declaration of Trust), Series
8.30% Debentures and in connection with a Liquidation Distribution (as defined
in the Declaration of Trust) the Regular Trustees may cause to be distributed
to holders of Preferred Securities and Common Securities, on such a Pro Rata
basis, Series 8.30% Debentures (each a "Dissolution Event"); and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this Fourth Supplemental
Indenture, and all requirements necessary to make this Fourth Supplemental
Indenture a valid instrument, in accordance with its terms, and to make the
Series 8.30% Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed and fulfilled, and the execution and delivery hereof have been in
all respects duly authorized;
NOW THEREFORE, in consideration of the purchase and acceptance
of the Series 8.30% Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Series 8.30% Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of
the Series 8.30% Debentures
SECTION 1.01. (a) There shall be and is hereby authorized a
series of Debentures designated the "8.30% Junior Subordinated Debentures Due
2045", limited in aggregate principal amount to $310,670,125 (except as
provided in this Section 1.01 and 6.01). Upon exercise of the overallotment
option set forth in the Underwriting Agreement (as defined in the Declaration
of Trust), additional Series 8.30% Debentures in the aggregate principal
amount of up to $45,000,000 may be executed by the Company and delivered to
the Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver said Series 8.30% Debentures to or upon the written order of the
Company, which order shall be accompanied by evidence satisfactory to the
Trustee that the overallotment option has been exercised.
(b) The Series 8.30% Debentures shall mature and the
principal shall be due and payable together with all accrued and unpaid
interest thereon, including Compounded Interest (as hereinafter defined) on
September 30, 2045; provided, however, that the Company may at any time
shorten the maturity of the Series 8.30% Debentures, to a date not earlier
than November 13, 2001, upon the occurrence of a Deductibility of Interest Tax
Event (as hereinafter defined). If the Company elects to shorten the maturity
of the Series 8.30% Debentures, (i) the Company shall give notice of the new
maturity date of the Series 8.30% Debentures (the "Shortened Maturity Date")
to (A) holders of the Series 8.30% Debentures, (B) holders of the Preferred
Securities and Common Securities, (C) the Property Trustee, (D) SunAmerica
Capital III and (E) the Trustee and (ii) the Series 8.30% Debentures shall
mature and the principal shall be due and payable together with all accrued
and unpaid interest thereon, including Compounded Interest, on the Shortened
Maturity Date.
SECTION 1.02. (a) Except as provided in Section 1.02(b), the
Series 8.30% Debentures shall be issued in fully registered certificated form
without interest coupons. Principal and interest on the Series 8.30%
Debentures issued in certificated form will be payable, the transfer of such
Series 8.30% Debentures will be registrable and such Series 8.30% Debentures
will be exchangeable for Series 8.30% Debentures bearing identical terms and
provisions at the office or agency of the Company in the Borough of Manhattan,
The City and State of New York; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the registered
holder at such address as shall appear in the Debenture register and that the
payment of principal with respect to the Series 8.30% Debentures will only be
made upon surrender of the Series 8.30% Debentures to the Trustee.
Notwithstanding the foregoing, so long as the Property Trustee is the legal
owner and record holder of the Series 8.30% Debentures, the payment of the
principal of and interest (including Compounded Interest, if any) on the
Series 8.30% Debentures held by the Property Trustee will be made by the
Company in immediately available funds on the payment date therefor at such
place and to the Property Account (as defined in the Declaration of Trust)
established and maintained by the Property Trustee pursuant to the Declaration
of Trust.
(b) In connection with a Dissolution Event;
(i) Series 8.30% Debentures in certificated form may be
presented to the Trustee by the Property Trustee in
exchange for a Global Debenture representing the Series
8.30% Debentures in an aggregate principal amount equal
to all Outstanding Series 8.30% Debentures, to be
registered in the name of the Depository, or its nominee,
and delivered by the Trustee to the Depository for
crediting to the accounts of its participants pursuant to
the instructions of the Regular Trustees (as defined in
the Declaration of Trust). The Company upon any such
presentation shall execute a Global Debenture
representing the Series 8.30% Debentures in such
aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance
with the Indenture and this Fourth Supplemental
Indenture. Payments on the Series 8.30% Debentures
issued as a Global Debenture will be made to the
Depository; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, Series 8.30% Debentures in
certificated form may be presented to the Trustee by the
Property Trustee and any Preferred Security Certificate
(as defined in the Declaration of Trust) which represents
Preferred Securities other than Preferred Securities held
by the Clearing Agency (as defined in the Declaration of
Trust) or its nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial
interests in Series 8.30% Debentures presented to the
Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation
amount of the Non Book-Entry Preferred Securities until
such Preferred Security Certificate is presented to the
Debenture Registrar for transfer or reissuance at which
time such Preferred Security Certificate will be
cancelled and a Series 8.30% Debenture, registered in the
name of the holder of the Preferred Security Certificate
or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Security Certificate
canceled will be executed by the Company and delivered to
the Trustee for authentication and delivery in accordance
with the Indenture and this Fourth Supplemental
Indenture. On issue of such Series 8.30% Debentures,
Series 8.30% Debentures with an equivalent aggregate
amount that were presented by the Property Trustee to the
Trustee will be deemed to have been canceled.
SECTION 1.03. Each Series 8.30% Debenture will bear interest
at the rate of 8.30% per annum from November 13, 1996 until the principal
thereof becomes due and payable, and on any overdue principal and (to the
extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest at the same rate per annum, compounded
quarterly, payable (subject to the provisions of Article Three) quarterly in
arrears on March 30, June 30, September 30 and December 30 of each year (each,
an "Interest Payment Date", commencing on December 30, 1996), to the person in
whose name such Series 8.30% Debenture or any predecessor Series 8.30%
Debenture is registered, at the close of business on the regular record date
for such interest installment, which, except as set forth below, shall be, in
respect of any Series 8.30% Debentures of which the Property Trustee is the
registered holder of or a Global Debenture, the close of business on the
business day next preceding that Interest Payment Date. Notwithstanding the
foregoing sentence, if the Preferred Securities are no longer in book-entry
only form or if pursuant to the provisions of Section 2.11(c) of the Indenture
the Series 8.30% Debentures are not represented by a Global Debenture, the
regular record dates for such interest installment shall be the close of
business on the March 15, June 15, September 15 or December 15 next preceding
that Interest Payment Date. Any such interest installment not punctually paid
or duly provided for shall forthwith cease to be payable to the registered
holders on such regular record date, and may be paid to the person in whose
name the Series 8.30% Debenture (or one or more Predecessor Debentures) is
registered at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice whereof shall
be given to the registered holders of the Series 8.30% Debentures not less
than 10 days prior to such special record date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Series 8.30% Debentures may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months and for any period
shorter than a full quarterly interest period for which interest is computed,
the amount of interest payable will be computed on the basis of the actual
number of days elapsed in such a 30-day month. In the event that any date on
which interest is payable on the Series 8.30% Debentures is not a business
day, then payment of interest payable on such date will be made on the next
succeeding day that is a business day (and without any interest or other
payment in respect of any such delay), except that, if such business day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding business day, in each case with the same force and
effect as if made on such date.
ARTICLE TWO
Optional Redemption
of the Series 8.30% Debentures
SECTION 2.01. Except as provided in Section 2.02, Series 8.30%
Debentures may not be redeemed by the Company prior to November 13, 2001.
Subject to the terms of Article Three of the Indenture, the Company shall have
the right to redeem the Series 8.30% Debentures, in whole or in part, from
time to time, on or after November 13, 2001, at a redemption price equal to
100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon, including Compounded Interest, if any, to the date of such
redemption (the "Optional Redemption Price"). Any redemption pursuant to this
paragraph will be made upon not less than 30 nor more than 60 days' notice, at
the Optional Redemption Price.
SECTION 2.02. If, at any time, a Tax Event (as defined below)
shall occur or be continuing, the Company shall have the right at any time,
upon not less than 30 nor more than 60 days' notice, to redeem the Series
8.30% Debentures in whole or in part for cash at the Optional Redemption Price
within 90 days following the occurrence of such Tax Event.
"Tax Event" means that the company and the Regular Trustees
shall have obtained an opinion of nationally recognized independent tax
counsel experienced in such matters (a "Tax Event Opinion") to the effect
that on or after November 7, 1996 as a result of (a) any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
or taxing authority thereof or therein, (b) any amendment to, or change in,
an interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position
or (d) any action taken by any governmental agency or regulatory authority,
which amendment or change is enacted, promulgated, issued or effective or
which interpretation or pronouncement is issued or announced or which
action is taken, in each case on or after November 7, 1996 there is more
than an insubstantial risk that (i) SunAmerica Capital III is, or will be
within 90 days of the date thereof, subject to United States federal income
tax with respect to income accrued or received on the Series 8.30%
Debentures, (ii) SunAmerica Capital III is, or will be within 90 days of
the date thereof, subject to more than a de minimis amount of taxes, duties
or other governmental charges or (iii) interest payable by the Company on
the Series 8.30% Debentures is not, or within 90 days of the date thereof
will not be, deductible by the Company for United States federal income tax
purposes (any Tax Event set forth in this clause (iii) being a
"Deductibility of Interest Tax Event").
SECTION 2.03. If the Series 8.30% Debentures are only
partially redeemed pursuant to this Article Two, the Series 8.30% Debentures
will be redeemed pro rata or by lot or by any other method utilized by the
Trustee, provided that if at the time of redemption, the Series 8.30%
Debentures are registered as a Global Debenture, the Depository shall
determine by lot the principal amount of such Series 8.30% Debentures held by
each Debenture Holder to be redeemed in accordance with its customary
procedures. Notwithstanding the foregoing, if a partial redemption of the
Series 8.30% Debentures would result in the delisting of the Preferred
Securities by any national securities exchange or other organization on which
the Preferred Securities are then listed, the Company shall not be permitted
to effect such partial redemption and will only redeem the Series 8.30%
Debentures in whole.
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. So long as the Company is not in default in the
payment of interest on the Series 8.30% Debentures, the Company shall have the
right, at any time during the term of the Series 8.30% Debentures, from
time to time to extend the interest payment period of such Series 8.30%
Debentures for up to 20 consecutive quarterly interest periods (the
"Extended Interest Payment Period"), at the end of which period the Company
shall pay all interest accrued and unpaid thereon (together with interest
thereon at the rate of 8.30% per annum to the extent permitted by
applicable law, compounded quarterly ("Compounded Interest")). During such
Extended Interest Payment Period the Company shall not declare or pay any
dividend on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of its common stock or preferred
stock or make any guarantee payments with respect thereto; provided that
(i) the Company may pay accrued dividends (and cash in lieu of fractional
shares) upon conversion of its Series E Mandatory Conversion Premium
Dividend Preferred Stock or upon the conversion of any other preferred
stock of the Company as may be outstanding from time to time, in each case
in accordance with the terms of such stock and (ii) the foregoing will not
apply to any stock dividends paid by the Company. Prior to the termination
of any such Extended Interest Payment Period, the Company may pay all or
any portion of the interest accrued on the Series 8.30% Debentures on any
Interest Payment Date to holders of record on the regular record date for
such Interest Payment Date or from time to time further extend such Period;
provided that such Period together with all such further extensions thereof
shall not exceed 20 consecutive quarterly interest periods. Upon the
termination of any Extended Interest Payment Period and upon the payment of
all accrued and unpaid interest then due, together with Compounded
Interest, the Company may select a new Extended Interest Payment Period,
subject to the foregoing requirements. No interest shall be due and
payable during an Extended Interest Payment Period, except at the end
thereof. At the end of the Extended Interest Payment Period the Company
shall pay all interest accrued and unpaid on the Series 8.30% Debentures
including any Compounded Interest which shall be payable to the holders of
the Series 8.30% Debentures in whose names the Series 8.30% Debentures are
registered in the Debenture register on the first record date after the end
of the Extended Interest Payment Period. The failure by the Company to
make interest payments during an Extended Interest Payment Period would not
constitute a default or Event of Default under the Indenture.
SECTION 3.02. (a) So long as the Property Trustee is the sole
legal owner and holder of record of the Series 8.30% Debentures, at the time
the Company selects an Extended Interest Payment Period, the Company shall
give the Property Trustee written notice of its selection of such Extended
Interest Payment Period one business day prior to the earlier of (i) the next
succeeding date on which distributions on the Preferred Securities are payable
or (ii) the date SunAmerica Capital III is required to give notice of the
record date or the date such distributions are payable to the New York Stock
Exchange or other applicable self-regulatory organization or to holders of the
Preferred Securities, but in any event not less than one business day prior to
such record date. The Company shall cause SunAmerica Capital III to give
notice of the Company's selection of such Extended Interest Payment Period to
the holders of the Preferred Securities.
(b) If as a result of a Dissolution Event Series 8.30%
Debentures have been distributed to holders of Preferred Securities and Common
Securities, at the time the Company selects an Extended Interest Payment
Period, the Company shall give the holders of the Series 8.30% Debentures and
the Trustee written notice of its selection of such Extended Interest Payment
Period at least 10 business days prior to the earlier of (i) the next
succeeding Interest Payment Date or (ii) the date the Company is required to
give notice of the record or payment date of such interest payment to the New
York Stock Exchange or other applicable self-regulatory organization or to
holders of the Series 8.30% Debentures.
SECTION 3.03. The quarter in which any notice is given
pursuant to Section 3.02 shall be counted as one of the 20 quarters permitted
in the maximum Extended Interest Payment Period permitted under this Article
Three.
ARTICLE FOUR
Covenants Applicable to Series 8.30% Debentures
SECTION 4.01. So long as any Preferred Securities remain
outstanding, the Company will not declare or pay any dividends on, or redeem,
purchase, acquire or make a distribution or liquidation payment with respect
to, any of its common stock or preferred stock or make any guarantee payments
with respect thereto if at such time (i) the Company shall be in default with
respect to its Guarantee Payments (as defined in the Guarantee Agreement) or
other payment obligations under the Guarantee Agreement, (ii) there shall have
occurred any Event of Default under the Indenture with respect to the Series
8.30% Debentures or (iii) the Company shall have given notice of its election
of an Extended Interest Payment Period and such Period, or any extension
thereof, is continuing; provided that (a) the Company will be permitted to pay
accrued dividends (and cash in lieu of fractional shares) upon the conversion
of any of its Series E Mandatory Conversion Premium Dividend Preferred Stock
or upon the conversion of any other preferred stock of the Company as may be
outstanding from time to time, in each case in accordance with the terms of
such stock and (b) the foregoing will not apply to any stock dividends paid by
the Company.
SECTION 4.02. In connection with the distribution of the
Series 8.30% Debentures to the holders of the Preferred Securities upon a
Dissolution Event, the Company will use its best efforts to list such Series
8.30% Debentures on the New York Stock Exchange or on such other exchange as
the Preferred Securities are then listed and traded.
SECTION 4.03. The Company covenants and agrees for the benefit
of the holders of the Preferred Securities to comply fully with all of its
obligations and agreements under the Declaration of Trust, including, without
limitation, its obligations under Article IV thereof.
SECTION 4.04. Prior to the distribution of Series 8.30%
Debentures to the holders of Preferred Securities upon a Dissolution Event,
the Company covenants and agrees for the benefit of the holders of the
Preferred Securities (i) not to cause or permit the Common Securities to be
transferred except as permitted by the Declaration of Trust and (ii) not to
take any action which would cause the Trust to cease to be treated as a
grantor trust for United States federal income tax purposes, except in
connection with a distribution of the Series 8.30% Debentures as provided in
the Declaration of Trust.
ARTICLE FIVE
Form of Series 8.30% Debentures
SECTION 5.01. The Series 8.30% Debentures and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially
in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE NOTE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of a Depository. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Debenture (other than a transfer of this Debenture as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository) may be registered
except in limited circumstances.
Unless this Debenture is presented by an authorized
representative to The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.]
No. $
CUSIP NO.
SUNAMERICA INC.
8.30% JUNIOR SUBORDINATED DEBENTURE DUE 2045
SunAmerica Inc., a corporation duly organized and existing
under the laws of the State of Maryland (herein referred to as the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of _________
Dollars on September 30, 2045 (or on a Shortened Maturity Date (as defined
below) established by the Company as further described herein), and to pay
interest on said principal sum from November 13, 1996 or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on March 30, June 30, September 30 and December
30 of each year commencing December 30, 1996 at the rate of 8.30% per annum
plus Compounded Interest, if any, until the principal hereof shall have become
due and payable, and on any overdue principal and premium, if any, and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at
the same rate per annum. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of twelve 30-day
months and for any period shorter than a full quarterly interest period for
which interest is computed, the amount of interest payable will be computed on
the basis of the actual number of days elapsed in such a 30-day month. In the
event that any date on which interest is payable on this Debenture is not a
business day, then payment of interest payable on such date will be made on
the next succeeding day which is a business day (and without any interest or
other payment in respect of any such delay), except that, if such business day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding business day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Debentures, as defined in said Indenture) is
registered at the close of business on the regular record date for such
interest installment, [which shall be the close of business on the day next
preceding such Interest Payment Date, provided that if the Preferred
Securities of SunAmerica Capital Trust III are no longer in book-entry only
form, the regular record dates shall be the close of business on the March 15,
June 15, September 15 or December 15 next preceding such Interest Payment
Date] [IF PURSUANT TO THE PROVISIONS OF SECTION 2.11(c) OF THE INDENTURE THE
SERIES 8.30% DEBENTURES ARE NOT REPRESENTED BY A GLOBAL DEBENTURE -- which
shall be the close of business on the March 15, June 15, September 15 or
December 15 next preceding such Interest Payment Date.] Any such interest
installment not punctually paid or duly provided for shall forthwith cease to
be payable to the registered holders on such regular record date, and may be
paid to the person in whose name this Debenture (or one or more Predecessor
Debentures) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered holders of this series of Debentures
not less than 10 days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture. The principal of (and premium, if any) and the interest on this
Debenture shall be payable at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City and State of New York,
in any coin or currency of the United States of America which at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the registered holder at such address as shall appear in the
Debenture register and that the payment of principal will only be made upon
the surrender of this Debenture to the Trustee. Notwithstanding the
foregoing, so long as the owner and record holder of this Debenture is the
Property Trustee (as defined in the Indenture referred to on the reverse
hereof), the payment of the principal of (and premium, if any) and interest
(including Compounded Interest, if any) on this Debenture will be made at
such place and to such account of the Property Trustee as may be designated
by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such Holder upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
Unless the Certificate of Authentication hereon has been
executed by the Trustee referred to on the reverse side hereof, this Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to
be executed.
Dated __________________________
SUNAMERICA INC.
By _____________________________
Attest:
By _____________________________
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
_____________________________
or as Authentication Agent
By _____________________________ _____________________________
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures
of the Company (herein sometimes referred to as the "Debentures"), specified
in the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of March 15, 1995 (as amended by a
Supplemental Indenture dated as of October 28, 1996) duly executed and
delivered between the Company and The First National Bank of Chicago, a
national banking association, as Trustee (herein referred to as the
"Trustee"), as supplemented by the Fourth Supplemental Indenture dated as of
November 13, 1996 between the Company and the Trustee (said Indenture as so
amended and supplemented being hereinafter referred to as the "Indenture"), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the holders
of the Debentures, and, to the extent specifically set forth in the Indenture,
the holders of Senior Indebtedness and Preferred Securities. By the terms of
the Indenture, the Debentures are issuable in series which may vary as to
amount, date of maturity, rate of interest and in other respects as in the
Indenture provided. This series of Debentures is designated the 8.30% Junior
Subordinated Debentures due 2045 and is limited in aggregate principal amount
as specified in said Fourth Supplemental Indenture.
The Indenture contains provisions permitting the Company to
shorten the maturity of the Series 8.30% Debentures, to a date not earlier
than November 13, 2001, upon the occurrence of a Deductibility of Interest Tax
Event (as hereinafter defined). If the Company elects to shorten the maturity
of the Series 8.30% Debentures, (i) the Company shall give notice of the new
maturity date of the Series 8.30% Debentures (the "Shortened Maturity Date")
to (A) holders of the Series 8.30% Debentures, (B) holders of the Preferred
Securities and Common Securities, (C) the Property Trustee, (D) SunAmerica
Capital Trust III and (E) the Trustee and (ii) the Series 8.30% Debentures
shall mature and the principal shall be due and payable together with all
accrued and unpaid interest thereon, including Compounded Interest, on the
Shortened Maturity Date.
Except as provided in the next paragraph, the Series 8.30%
Debentures may not be redeemed by the Company prior to November 13, 2001. The
Company shall have the right to redeem this Debenture at the option of the
Company, without premium or penalty, in whole or in part at any time on or
after November 13, 2001 (an "Optional Redemption"), at a redemption price
equal to 100% of the principal amount plus any accrued but unpaid interest,
including any Compounded Interest, if any, to the date of such redemption (the
"Optional Redemption Price"). Any redemption pursuant to this paragraph will
be made upon not less than 30 nor more than 60 days' notice, at the Optional
Redemption Price. If the Debentures are only partially redeemed by the
Company pursuant to an Optional Redemption, the Debentures will be redeemed
pro rata or by lot or by any other method utilized by the Trustee; provided
if, at the time of redemption, the Debentures are registered as a Global
Debenture, the Depository shall determine the principal amount of such
Debentures held by each holder of Debentures to be redeemed in accordance
with its customary procedures.
If, at any time, a Tax Event (as defined below) shall occur or
be continuing, the Company shall have the right at any time, upon not less
than 30 nor more than 60 days' notice, to redeem the Series 8.30% Debentures
in whole or in part for cash at the Optional Redemption Price within 90 days
following the occurrence of such Tax Event.
"Tax Event" means that the Regular Trustees shall have obtained
an opinion of nationally recognized independent tax counsel experienced in
such matters (a "Tax Event Opinion") to the effect that on or after
November 7, 1996, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, (b) any amendment to, or change in, an
interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position
or (d) any action taken by any governmental agency or regulatory authority,
which amendment or change is enacted, promulgated, issued or effective or
which interpretation or pronouncement is issued or announced or which
action is taken, in each case on or after November 7, 1996, there is more
than an insubstantial risk that (i) SunAmerica Capital III is, or will be
within 90 days of the date thereof, subject to United States federal income
tax with respect to income accrued or received on the Series 8.30%
Debentures, (ii) SunAmerica Capital III is, or will be within 90 days of
the date thereof, subject to more than a de minimis amount of taxes, duties
or other governmental charges or (iii) interest payable by the Company on
the Series 8.30% Debentures is not, or within 90 days of the date thereof
will not be, deductible by the Company for United States federal income tax
purposes (any Tax Event set forth in this clause (iii) being a
"Deductibility of Interest Tax Event").
If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption or as a result of a Tax Event as described
above, the Debentures will be redeemed pro rata or by lot or in some other
equitable manner determined by the Trustee. Notwithstanding the foregoing, if
a partial redemption of the Series 8.30% Debentures would result in the
delisting of the Preferred Securities by any national securities exchange or
other organization on which the Preferred Securities are then listed, the
Company shall not be permitted to effect such partial redemption and will only
redeem the Series 8.30% Debentures in whole.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures of this series for unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of
the entire indebtedness of this Debenture upon compliance by the Company with
certain conditions set forth therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture (and, in the case of any series
of Debentures held as trust assets of a SunAmerica Capital Trust and with
respect to which a Security Exchange has not theretofore occurred, such
consent of holders of the Preferred Securities and the Common Securities of
such SunAmerica Capital Trust as may be required under the Declaration of
Trust of such SunAmerica Capital Trust), to execute supplemental indentures
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Debentures; provided, however, that no such supplemental indenture shall
(i) extend the fixed maturity of any Debentures of any series, or reduce
the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable upon the
redemption thereof, without the consent of the holder of each Debenture so
affected or (ii) reduce the aforesaid percentage of Debentures, the holders
of which are required to consent to any such supplemental indenture,
without the consent of the holders of each Debenture (and, in the case of
any series of Debentures held as trust assets of a SunAmerica Capital Trust
and with respect to which a Security Exchange has not theretofore occurred,
such consent of the holders of the Preferred Securities and the Common
Securities of such SunAmerica Capital Trust as may be required under the
Declaration of Trust of such SunAmerica Capital Trust) then outstanding and
affected thereby. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the Debentures of a
series at the time outstanding affected thereby (subject, in the case of
any series of Debentures held as trust assets of a SunAmerica Capital Trust
and with respect to which a Securities Exchange has not theretofore
occurred, to such consent of holders of Preferred Securities and Common
Securities of such SunAmerica Capital Trust as may be required under the
Declaration of Trust of such SunAmerica Capital Trust), on behalf of the
Holders of the Debentures of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture with respect to such series, and its
consequences, except a default in the payment of the principal of or
premium, if any, or interest on any of the Debentures of such series. Any
such consent or waiver by the registered Holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon
such Holder and upon all future Holders and owners of this Debenture and of
any Debenture issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
Subject to Section 13.12 of the Indenture, no reference herein
to the Indenture (other than such Section) and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any,
and interest on this Debenture at the time and place at the rate and in the
money herein prescribed.
So long as the Company is not in default in the payment of
interest on the Debentures, the Company shall have the right, at any time
during the term of the Debentures, from time to time to extend the interest
payment period of such Debentures for up to 20 consecutive quarterly interest
periods (the "Extended Interest Payment Period"), at the end of which period
the Company shall pay all interest then accrued and unpaid (together with
interest thereon at the rate of 8.30% per annum to the extent permitted by
applicable law, compounded quarterly ("Compounded Interest")). During such
Extended Interest Payment Period the Company shall not declare or pay any
dividend on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of its common stock or preferred
stock, or make any guarantee payments with respect thereto, provided that (a)
the Company may pay accrued dividends (and cash in lieu of fractional shares)
upon conversion of its Series E Mandatory Conversion Premium Dividend
Preferred Stock or upon the conversion of any other preferred stock of the
Company as may be outstanding from time to time, in each case in accordance
with the terms of such stock and (b) the foregoing will not apply to any stock
dividends paid by the Company. Prior to the termination of any such Extended
Interest Payment Period, the Company may pay all or any portion of the
interest accrued on the Debentures on any Interest Payment Date to holders of
record on the regular record date for such Interest Payment Date or from time
to time further extend such Extended Interest Payment Period, provided that
such Period together with all such further extensions thereof shall not exceed
20 consecutive quarterly interest periods. At the termination of any such
Extended Interest Payment Period and upon the payment of all accrued and
unpaid interest then due, together with Compounded Interest, the Company may
select a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest on this Debenture shall be due and payable during an
Extended Interest Payment Period, except at the end thereof. At the end of
the Extended Interest Payment Period the Company shall pay all interest
accrued and unpaid on the Series 8.30% Debentures including any Compounded
Interest which shall be payable to the holders of the Series 8.30% Debentures
in whose names the Series 8.30% Debentures are registered in the Debenture
register on the first record date after the end of the Extended Interest
Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Debenture register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Company
in the Borough of Manhattan, The City and State of New York accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures
of authorized denominations and for the same aggregate principal amount and
series will be issued to the designated transferee or transferees. No service
charge will be made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Debenture Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest due hereon
and for all other purposes, and neither the Company nor the Trustee nor any
paying agent nor any Debenture Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
[If certificated Debentures -- The Debentures of this series
are issuable only in registered form without coupons in denominations of $25
and any integral multiple thereto.] [If Global Debenture -- This Global
Debenture is exchangeable for Debentures in definitive form under certain
limited circumstances set forth in the Indenture. Debentures of this series
so issued are issuable only in registered form without coupons in
denominations of $25 or any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations [If Global Debenture -- herein
and] therein set forth, Debentures of this series [If Global Debenture -- so
issued] are exchangeable for a like aggregate principal amount of Debentures
of this series of a different authorized denomination, as requested by the
Holder surrendering the same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE SIX
Original Issue of Series 8.30% Debentures
SECTION 6.01. Except as provided in Section 1.01 and this
Section 6.01, Series 8.30% Debentures in the aggregate principal amount equal
to $310,670,125 may, upon execution of this Fourth Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and
the trustee shall thereupon authenticate and deliver said Debentures to or
upon the written order of the Company, signed by its Chairman, its President,
or any Vice President and its Treasurer or an Assistant Treasurer, without any
further action by the Company. Upon exercise of the overallotment option set
forth in the Underwriting Agreement, additional Series 8.30% Debentures in the
aggregate principal amount of up to $45,000,000 may be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Series 8.30% Debentures executed as
aforesaid by the Company, to or upon the written order of the Company, which
order shall be accompanied by evidence satisfactory to the Trustee that the
overallotment option has been exercised.
ARTICLE SEVEN
Miscellaneous Provisions
SECTION 7.01. Except as otherwise expressly provided in this
Fourth Supplemental Indenture or in the form of Series 8.30% Debenture or
otherwise clearly required by the context hereof or thereof, all terms used
herein or in said form of Series 8.30% Debenture that are defined in the
Indenture shall have the several meanings respectively assigned to them
thereby.
SECTION 7.02. The Indenture, as supplemented by this Fourth
Supplemental Indenture, is in all respects ratified and confirmed; provided
that the words ", may after a period of 30 days has elapsed from such holder's
written request to the Property Trustee to enforce such rights," in the ninth
and tenth lines of Section 13.12 of the Indenture shall not be applicable to
the Series 8.30% Debentures. This Fourth Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 7.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this Fourth Supplemental Indenture.
SECTION 7.04. This Fourth 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 Fourth
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: James R. Belardi
Title: Executive Vice President
Attest:
_____________________________
Name: Susan L. Harris
Title: Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By _____________________________
Name:
Title:
Attest:
_____________________________
Assistant Secretary
STATE OF CALIFORNIA )
) ss.:
COUNTY OF Los Angeles ) November 13, 1996
On the 13th day of November, 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 1242
Berkeley Street, #12, Santa Monica, California 90404; that he is Executive
Vice President 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 ) November 13, 1996
On the 13th day of November, in the year one thousand nine
hundred ninety-six, before me personally came R. D. Manella to me known, who,
being by me duly sworn, did depose and say that he resides at 211 Willow Pky.,
Buffalo Grove, Illinois, 60089 that he is a Vice President 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 8
LETTERHEAD OF DAVIS POLK & WARDWELL
(212) 450-4571
November 7, 1996
SunAmerica Inc.
SunAmerica Capital Trust III
1 SunAmerica Center
Los Angeles, California 90067
Re: SunAmerica Capital Trust III -- 12,000,000 Trust
Originated Preferred Securities
Ladies and Gentlemen:
We have acted as special counsel for SunAmerica Inc.
("SunAmerica") and SunAmerica Capital Trust III (the "Trust") in connection
with the Trust's issuance of 12,000,000 Trust Originated Preferred Securities
(the "Preferred Securities"). In connection therewith, we have prepared the
discussion set forth under the caption "Taxation" (the "Discussion") in the
prospectus supplement dated November 7, 1996 (the "Prospectus Supplement") to
the prospectus (the "Prospectus") that is part of the Registration Statement
on Form S-3 (Registration Nos. 333-14201 and 333-14201-01) to be filed by
SunAmerica and the Trust with the Securities and Exchange Commission.
In rendering our opinion, we have examined the form of Amended
and Restated Declaration of Trust of SunAmerica Capital Trust III dated as of
November 13, 1996 (the "Declaration") included as an Exhibit to the
Registration Statement, and have assumed that the Trustees will conduct the
affairs of the Trust in accordance with the Declaration. We hereby confirm
our opinion as set forth in the Discussion, which is a summary of the material
United States federal income tax consequences of the ownership and disposition
of the Preferred Securities.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of our name under the caption
"Taxation" in the Prospectus Supplement. The issuance of such consent does
not concede that we are an "expert" for the purposes of the Securities Act of
1933.
Very truly yours,
/s/ Davis Polk & Wardwell
