EXHIBIT 1.3
UNDERWRITING AGREEMENT
November 7, 1996
SunAmerica Capital Trust III
c/o SunAmerica Inc.
0 XxxXxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
SunAmerica Inc.
0 XxxXxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
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
----------------------------------------------- ---------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated................................. 1,644,000
Xxxx Xxxxxx Xxxxxxxx Inc....................... 1,644,000
PaineWebber Incorporated....................... 1,644,000
Prudential Securities Incorporated............. 1,644,000
Xxxxx Xxxxxx Inc............................... 1,644,000
Bear, Xxxxxxx & Co. Inc........................ 120,000
Alex. Xxxxx & Sons Incorporated ............... 120,000
Xxxxx & Company................................ 120,000
Xxxx Xxxxxxxx Incorporated..................... 120,000
Xxxxxx, Read & Co. Inc......................... 120,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation................................... 120,000
X.X. Xxxxxxx & Sons, Inc....................... 120,000
EVEREN Securities Inc.......................... 120,000
Xxxxxx Xxxxxxx & Co. Incorporated.............. 120,000
The Ohio Company............................... 120,000
Xxxxxxxxxxx & Co., Inc......................... 120,000
Xxxxx Xxxxxxx Inc.............................. 120,000
Xxxxxxx Xxxxx & Associates Inc................. 120,000
The Xxxxxxxx-Xxxxxxxx Company, Inc............. 120,000
Xxxxxx Xxxxxxx Incorporated.................... 120,000
Wheat, First Securities, Inc................... 120,000
Advest, Inc.................................... 60,000
Xxxxxx X. Xxxxx & Co. Incorporated............. 60,000
X.X. Xxxxxxxx & Co............................. 60,000
XX Xxxxxxx Securities, Inc..................... 60,000
Craigie Incorporated........................... 60,000
Xxxxxxx, Xxxxxx & Co........................... 60,000
Xxxxxxxxx & Co. of Virginia, Inc............... 60,000
Xxxxxxxxxx & Co. Inc........................... 60,000
First Albany Corporation....................... 60,000
Gibraltar Securities Co........................ 60,000
Crunta1 & Co., Incorporated.................... 60,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc............... 60,000
Interstate/Xxxxxxx Lane Corporation............ 60,000
Xxxxxx Xxxxxxxxxx Xxxxx Inc.................... 60,000
Xxxxxxxxxx Xxxx & Xxxx Incorporated............ 60,000
Xxxxxxx, Cabot & Co............................ 60,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated........... 60,000
XxXxxxxx & Company Securities, Inc............. 60,000
XxXxxx, Xxxxx & Co., Inc....................... 60,000
Mesirow Financial, Inc......................... 60,000
Xxxxxx Xxxxxx & Company, Inc................... 60,000
Xxxxx X. Xxxxx & Company....................... 60,000
Xxxxxxxx Xxxxxx Refsnes, Inc................... 60,000
Xxxxx & Co., LLC............................... 60,000
Xxxxx & Xxxxxxxxxxxx, Inc...................... 60,000
Xxxxxx, Xxxxxxxx & Company,
Incorporated................................. 60,000
Stone & Xxxxxxxxx.............................. 60,000
Sutro & Co. Incorporated....................... 60,000
US Clearing Corp............................... 60,000
Wedbush Xxxxxx Securities...................... 60,000
Yamaichi International (America), Inc.......... 60,000
----------
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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx 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, Xxxxxxx & Xxxx 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
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,
Xxxxxxx & Xxxx 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 Xxxxxxx Xxxxx & 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,
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXX XXXXXX XXXXXXXX INC.
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
XXXXX XXXXXX INC.,
Acting severally on behalf of themselves and the several Underwriters named
herein
By: Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
Accepted:
SUNAMERICA CAPITAL TRUST III,
a Delaware statutory business trust
By: SUNAMERICA INC.,
Sponsor
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
SUNAMERICA INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
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, Xxxxx
X. Xxxxxx, Esq., Vice President and General Counsel--Corporate Affairs for the
Company, Xxxxx Xxxx & Xxxxxxxx, special counsel for the Company, and Xxxxxxxx,
Xxxxxx & 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) Xx. Xxxxxx 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 Xxxxx Xxxx & Xxxxxxxx, Xxxxx &
Xxxxxxx and Xxxxxxxx, Xxxxxx & Finger, (ii) Xxxxx Xxxx & Xxxxxxxx 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 Xxxxxxxx, Xxxxxx & Finger and (iii) Xxxxxxxx, Xxxxxx &
Finger may rely, as to matters governed by laws other than the State of
Delaware, on an opinion or opinions of Piper & Marbury and Xxxxx Xxxx &
Xxxxxxxx, 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 Xxxxx'x 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 Xxxxx X. Xxxxxx, 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 Xxxxx Xxxx & Xxxxxxxx, 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 Xxxxxxxx, Xxxxxx & 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.
