FORM OF DEBT UNDERWRITING AGREEMENT
___________, 199_
SunAmerica Inc.
0 XxxXxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
SunAmerica Inc., a Maryland corporation (the "Company"), proposes to issue and
sell [Currency and Principal Amount] aggregate initial offering price of [Full
title of Debt Securities] (the "Debt Securities")(1) [and ____ warrants (the
"Debt Warrants") to purchase [Currency and Principal Amount] aggregate initial
offering price of its [title of debt securities] (the "Debt Warrant
Securities")]. [(The Debt Securities and the Debt Warrants, but not the Debt
Warrant Securities, are collectively referred to herein as the "Offered
Securities.")](2) The Debt Securities will be issued pursuant to the
provisions of a [Senior] [Subordinated] [Junior Subordinated] Indenture
dated as of _______________, 199_ (the "Indenture") between the Company and
The First National Bank of Chicago, as Trustee (the "Trustee"), [and the
Debt Warrants will be issued pursuant to the provisions of a Debt Warrant
Agreement dated as of _________________, 199_ (the "Debt Warrant
Agreement") between the Company and _______________, as Debt Warrant
Agent].
_________
(1) If there is a green shoe, (i) redefine "Debt Securities" as "Firm
Securities", (ii) add description and definition of "Additional Securities"
and (iii) redefine "Debt Securities" to include "Firm Securities" and
"Additional Securities". See form of SunAmerica Equity Underwriting
Agreement.
_________
(2) If no Debt Warrants are being issued, replace this sentence with the
following sentence:
(The Debt Securities are also referred to herein as the "Offered
Securities.")
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the respective principal amounts
of Debt [Firm] Securities [and numbers of Debt Warrants] set forth below
opposite their names at a purchase price of ____% of the principal amount of
Debt [Firm] Securities [, plus accrued interest, if any, from [Date of Offered
Securities] to the date of payment and delivery] [and at a purchase price of
$____ per Debt Warrant](3):
_________
(3) If there is a green shoe, add paragraph regarding agreement to sell
Additional Securities. See form of SunAmerica Equity Underwriting Agreement.
Principal Amount of
Name Debt [Firm] Securities
----------------------- ----------------------
[Insert syndicate list]
Total . . . . . .
===========
Number of Debt
Name Warrants
----------------------- --------------
[Insert syndicate list]
Total . . . . . .
===========
[The principal amount of Debt Securities and number of Debt
Warrants to be purchased by the several Underwriters shall be reduced by the
aggregate principal amount of Debt Securities and number of Debt Warrants sold
pursuant to Delayed Delivery Contracts.]
The Underwriters will pay for the Offered [Firm] Securities
[(less any Offered [Firm] Securities sold pursuant to Delayed Delivery
Contracts)] upon delivery thereof at [office] at ______ a.m. (New York time)
on ___________, 199_, or at such other time, not later than 5:00 p.m. (New
York time) on __________, 199_, as shall be designated by the Manager. The
time and date of such payment and delivery are hereinafter referred to as
the Closing Date.(4)
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(4) If there is a green shoe, add paragraph regarding timing of closing for
Additional Securities and definition of "Option Closing Date". See form of
SunAmerica Equity Underwriting Agreement.
The Offered Securities shall have the terms set forth in the
Prospectus dated _________ __, 199_, and the Prospectus Supplement dated
________ __, 199_, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)]
Form and Denomination:
Redemption Provisions:
Conversion Provisions:
Exchange Provisions:
Sinking Fund Provisions:
[Other Terms:]
Terms of Debt Warrants
[Number of Debt Warrants issued
with each $__________ principal
amount of Debt Securities:]
[Detachable Date:]
Exercise Date:
Expiration Date:
Exercise Price:
Principal amount of Debt Warrant
Securities purchasable upon
exercise of one Debt Warrant:
Form:
[Other Terms:]
Terms of Debt Warrant Securities
Maturity Date:
Interest Rate:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)]
Form and Denomination:
Redemption Provisions:
Conversion Provisions:
Exchange Provisions:
Sinking Fund Provisions:
[Other Terms]:
[The commission to be paid to the Underwriters in respect of
the Offered Securities purchased pursuant to delayed delivery contracts
arranged by the Underwriters shall be ___% of the principal amount of the Debt
Securities so purchased [and $____ per Debt Warrant so purchased].]
[Additional provisions.](5)
----------
(5) If there is to be a "lock-up" of Company securities, add corresponding
paragraph from form of SunAmerica Equity Underwriting Agreement.
All provisions contained in the document entitled SunAmerica
Inc. Underwriting Agreement Standard Provisions (Debt Securities and Warrants
to Purchase Debt Securities) dated September __, 1995, a copy of which is
attached hereto, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, except that (i) if any term
defined in such document is otherwise defined herein, the definition set forth
herein shall control, (ii) all references in such document to, and all
provisions relating to, a type of security that is not an Offered Security
shall not be deemed to be a part of this Agreement, (iii) if the Offered
Securities do not include Debt Warrants, then all references in such document
to Debt Warrant Securities, and all provisions in such document relating to
Debt Warrants and Debt Warrant Securities, shall not be deemed to be a part of
this Agreement, and (iv) all references in such document to, and all
provisions in such document relating to, a type of agreement that has not been
entered into in connection with the transactions contemplated hereby shall not
be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
____________________________
____________________________
____________________________
Acting severally on behalf of themselves and the
several Underwriters named herein
By: _______________________
_______________________
By: _______________________
Name:
Title:
Accepted:
SUNAMERICA INC.
By: ______________________
Name:
Title:
SUNAMERICA INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES AND WARRANTS
TO PURCHASE DEBT SECURITIES)
September __, 1995
From time to time, SunAmerica Inc., a Maryland corporation (the
"Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement").
The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a
prospectus, relating to the Offered Securities and Debt Warrant Securities
and has filed with, or transmitted for filing to, or shall promptly
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the
Offered Securities and the Debt Warrant Securities pursuant to Rule 424
under the Securities Act of 1933, as amended (the "Securities Act"). The
term "Registration Statement" means such registration statement, including
the exhibits thereto, as amended to the date of this Agreement. The term
"Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with
the Prospectus Supplement. The term "preliminary prospectus" means a
preliminary prospectus supplement specifically relating to the Offered
Securities and the Debt Warrant Securities, together with the Basic
Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus" and
"preliminary prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement" and "amendment"
or "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to
the date of the Basic Prospectus by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
The term "Contract Securities" means the Offered Securities to
be purchased pursuant to the delayed delivery contracts substantially in the
form of Schedule I hereto, with such changes therein as the Company may
approve (the "Delayed Delivery Contracts"). The term "Underwriters'
Securities" means the Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents
and warrants to each of the Underwriters that:
(a) The Registration Statement (including the most recent
post-effective amendment thereto, if any) has been declared effective by the
Commission; no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending before
or threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective,
did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Registration Statement,
since the later of the date it became effective and the date of the most
recent post-effective amendment, if any, will not fail to reflect any facts
or events which individually or in the aggregate represent a fundamental
change in the information set forth in the Registration Statement as of
such date, (iii) the Registration Statement and the Prospectus comply, and,
as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iv) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this Section 1(b) do not apply (A) to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Manager expressly for use therein or (B) to
that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), of the Trustee.
(c) This Agreement has been duly authorized, executed and
delivered by the Company.
(d) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(e) The Debt Warrant Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(f) The Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company, enforceable in accordance with their respective terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(g) The Offered Securities and the Debt Warrant Securities
have been duly authorized and, when executed and authenticated in accordance
with the provisions of the Indenture or the Debt Warrant Agreement, as the
case may be, and delivered to and paid for (A) by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of the
Underwriters' Securities, or by institutional investors in accordance with the
terms of the Delayed Delivery Contracts, in the case of the Contract
Securities and (B) upon the exercise of Debt Warrants pursuant to the Debt
Warrant Agreement, in the case of the Debt Warrant Securities, will be
entitled to the benefits of the Indenture or the Debt Warrant Agreement, as
the case may be, and will be valid and binding obligations of the Company, in
each case enforceable in accordance with their respective terms except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration, if
any, and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Offered Securities, the Debt Warrant Securities, the Delayed
Delivery Contracts and the Debt Warrant Agreement will not contravene any
provision of applicable law or the articles of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company or any
of its "significant subsidiaries" (as defined in Article 1 of Regulation S-X
under the Securities Act and hereinafter referred to as "Significant
Subsidiaries") that is material to the Company and its subsidiaries, taken as
a whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Significant Subsidiary, and
no consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, the Indenture, the Offered Securities,
the Debt Warrant Securities, the Delayed Delivery Contracts or the Debt
Warrant Agreement, except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Offered Securities and Debt Warrants.
(i) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
[(j) The [name of security into which the Debt Securities [and
Debt Warrant Securities] are convertible], initially reserved for issuance
upon conversion of the Debt Securities [and Debt Warrant Securities] (the
"Underlying Securities") have been duly authorized and reserved for issuance;
(k) When the Underlying Securities are issued upon conversion
of the Debt Securities [and Debt Warrant Securities] in accordance with the
terms of the Debt Securities [and Debt Warrant Securities], such Underlying
Securities will be validly issued, fully paid and non-assessable and will not
be subject to any preemptive or other right to subscribe for or purchase such
Underlying Securities.](6)
_________
(6) Paragraphs (j) and (k) should be included if the Offered Securities
will be convertible.
2. Delayed Delivery Contracts. If the Prospectus provides for
sales of Offered Securities pursuant to Delayed Delivery Contracts, the
Company hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions set forth in
the Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery
Contracts may be entered into only with institutional investors approved by
the Company of the types set forth in the Prospectus. On the Closing Date,
the Company will pay to the Manager as compensation for the accounts of the
Underwriters the commission set forth in the Underwriting Agreement in respect
of the Contract Securities. The Underwriters will not have any responsibility
in respect of the validity or the performance of any Delayed Delivery
Contracts.
If the Company executes and delivers Delayed Delivery Contracts
with institutional investors, the aggregate principal amount of Offered
Securities to be purchased by the several Underwriters shall be reduced by the
aggregate principal amount of Contract Securities; such reduction shall be
applied to the commitment of each Underwriter pro rata in proportion to the
principal amount of Offered Securities set forth opposite such Underwriter's
name in the Underwriting Agreement, except to the extent that the Manager
determines that such reduction shall be applied in other proportions and so
advises the Company; provided, however, that the total principal amount of
Offered Securities to be purchased by all Underwriters shall be the aggregate
principal amount set forth above, less the aggregate principal amount of
Contract Securities.
3. Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Underwriters' Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Underwriters' Securities are set forth in the
Prospectus.
4. Purchase and Delivery. Except as otherwise provided in
this Section 4, payment for the Underwriters' Securities shall be made by
certified or official bank check or checks payable to the order of the Company
in New York Clearing House or similar next-day funds at the time and place set
forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Underwriters'
Securities, registered in such names and in such denominations as the Manager
shall request in writing not less than one full business day prior to the date
of delivery, with any transfer taxes payable in connection with the transfer
of the Underwriters' Securities to the Underwriters duly paid.
Delivery on the Closing Date [or Option Closing Date](7) of any
Underwriters' Securities that are (i) Debt Securities in bearer form shall be
effected by delivery of a single temporary global Debt Security without
coupons (the "Global Debt Security") evidencing the Offered Securities that
are Debt Securities in bearer form and (ii) Debt Warrants in bearer form shall
be effected only by delivery of a single permanent global Debt Warrant (the
"Global Debt Warrant") evidencing the Offered Securities that are Debt
Warrants in bearer form, in each case to a common depositary for Xxxxxx
Guaranty Trust Company of New York, Brussels office, as operator of the
Euro-clear System ("Euro-clear"), and for Centrale de Livraison de Valeurs
Mobilieres S.A. ("CEDEL") for credit to the respective accounts at Euro-clear
or CEDEL of each Underwriter or to such other accounts as such Underwriter may
direct. Any Global Debt Security or Global Debt Warrant shall be delivered to
the Manager not later than the applicable Closing Date, against payment of
funds to the Company in the net amount then due to the Company for such Global
Debt Security or Global Debt Warrant, as the case may be, by the method and in
the form set forth in the Underwriting Agreement. The Company shall cause
definitive Debt Securities in bearer form to be prepared and delivered in
exchange for such Global Debt Security in such manner and at such time as may
be provided in or pursuant to the Indenture; provided, however, that the
Global Debt Security shall be exchangeable for definitive Debt Securities in
bearer form only on or after the applicable date specified for such purpose in
the Prospectus. Debt Warrants in bearer form shall be evidenced only by a
Global Debt Warrant until their expiration.
---------
(7) Include if a green shoe is to be offered to Underwriters.
5. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date, there shall not
have occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations,
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus.
(c) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (b) above
and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the obligations on its part to be
performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date
opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx
X. Xxxxxx, Esq., Vice President and General Counsel--Corporate
Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel
to the Company, dated the Closing Date, to the effect set forth in
Exhibits A, B and C, respectively. In giving such opinion, 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 and Xxxxx
& Marbury, and 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 of Piper &
Marbury, in each case so long as such opinion shall be dated the
Closing Date and in form and substance satisfactory to the Manager,
and shall expressly permit the Underwriters to rely thereon as if
such opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an
opinion of special counsel for the Underwriters (the selection of
whom shall be approved by the Company), dated the Closing Date, to
the effect set forth in paragraphs (ii) and (iii) [and (v)
and (vi)](8) in Exhibit A and paragraphs (i) through (vii) in Exhibit
C. In giving such opinion, such counsel may rely, as to matters
governed by laws other than the federal law of the United States of
America, on an opinion or opinions of local counsel satisfactory to
the Manager, so long as each such opinion shall be dated the Closing
Date and in form and substance satisfactory to the Manager, and shall
expressly permit the Underwriters to rely thereon as if such opinion
were addressed to Underwriters.
_________
(8) References to be included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory
to the Manager, from the Company's independent public accountants,
containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus.
[The several obligations of the Underwriters to purchase
Additional Securities hereunder are subject to delivery to the Manager on the
Option Closing Date of such opinions, certificates and documents contemplated
by this Section 5 as such Manager shall reasonably request relating to the
issuance of the Additional Securities.](9)
_________
(9) Include if a green shoe is to be offered to Underwriters.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement
as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities,
to furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement
to which the Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as the Prospectus is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, forthwith
to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters, and to the dealers (whose names and addresses
the Manager will furnish to the Company) to which Offered Securities
may have been sold by the Manager on behalf of the Underwriters and
to any other dealer upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws or insurance
securities laws of such jurisdictions as the Manager shall reasonably
request and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with
any review of the offering of the Offered Securities by the National
Association of Securities Dealers, Inc.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning
statement covering a twelve month period beginning on the first day
of the first full fiscal quarter after the date of this Agreement,
which earning statement shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations of the Commission
thereunder.
(f) During the period mentioned in paragraph (c) above, to
advise the Underwriters promptly of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceeding for that
purpose.
7. Covenants of the Underwriters.
(A) Each of the several Underwriters represents and agrees
with the Company that:
(a) except to the extent permitted under U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not
offered or sold, and during the restricted period will not offer
or sell, Debt Securities in bearer form (including any Debt
Security in global form that is exchangeable for Debt Securities
in bearer form) to a person who is within the United States or its
possessions or to a United States person and (ii) it has not
delivered and will not deliver within the United States or its
possessions definitive Debt Securities in bearer form that are
sold during the restricted period;
(b) it has, and throughout the restricted period will have, in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Debt Securities in bearer
form are aware that such Debt Securities may not be offered or sold
during the restricted period to a person who is within the United
States or its possessions or to a United States person, except as
permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with
their original issuance and if it retains Debt Securities in bearer
form for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Securities in bearer
form for the purpose of offering or selling such Debt Securities
during the restricted period, it will either (i) obtain from such
affiliate for the benefit of the Company the representations and
agreements contained in clauses (a), (b) and (c) or (ii) repeat and
confirm the representations and agreements contained in clauses (a),
(b) and (c) on such affiliate's behalf and obtain from such affiliate
the authority to so obligate it;
(e) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (a), (b), (c) and
(d) from any person other than its affiliate with whom it enters into
a written contract, as defined in U.S. Treas. Reg. Section 1.163-
5(c)(2)(i)(D)(4) for the offer or sale during the restricted period
of Debt Securities in bearer form; and
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities
may be offered, sold, resold or delivered.
All other terms used in the preceding paragraph have the meaning given to them
by the U.S. Internal Revenue Code (the "Code") and regulations thereunder,
including the D Rules. The restricted period is defined at U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D)(7).
(B) Each of the several Underwriters represents and agrees
with the Company that:
(a) except to the extent permitted under the D Rules, it has
not offered or sold, and will not offer or sell at any time, Debt
Warrants in bearer form to a person who is within the United States
or its possessions or to a United States person;
(b) it has in effect procedures reasonably designed to ensure
that its employees or agents who are directly engaged in selling Debt
Warrants in bearer form are aware that such Debt Warrants may not be
offered or sold at any time to a person who is within the United
States or its possessions or to a United States person, except as
permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt
Warrants in bearer form for purposes of resale in connection with
their original issuance and if it retains Debt Warrants in bearer
form for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Warrants in bearer
form for the purpose of offering or selling such Debt Warrants, it
will either (i) obtain from such affiliate for the benefit of the
Company the representations and agreements contained in clauses (a),
(b) and (c) or (ii) repeat and confirm the representations and
agreements contained in clauses (a), (b) and (c) on such affiliate's
behalf and obtain from such affiliate the authority to so obligate
it;
(e) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (a), (b), (c) and
(d) from any person other than its affiliate with whom it enters into
a written contract, as defined in U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(4) for the offer or sale of Debt Warrants in
bearer form; and
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Warrants may
be offered, sold, resold or delivered.
Terms used in the preceding paragraph have the meaning given to them by the
Code and regulations thereunder, including the D Rules.
8. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities, joint or several (including, without
limitation, any legal or other expenses reasonably incurred by any Underwriter
or any such controlling person in connection with defending or investigating
any such action or claim), caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information furnished to the Company by any Underwriter in writing
through the Manager expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting
such losses, claims, damages or liabilities purchased Offered Securities, Debt
Warrant Securities or Debt Warrants, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented, if
the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to such purchase, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities. This indemnity
will be in addition to any liability which the Company may otherwise have.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only to the extent that any untrue statement
or omission or alleged untrue statement or omission was made in reliance upon
and in conformity with information furnished to the Company by any Underwriter
in writing through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto. This indemnity will be in addition to any liability
which the Underwriters may otherwise have.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager,
in the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first or second
paragraph in this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the one
hand and of the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this
Section 8 are several in proportion to the respective principal amounts of
Offered Securities purchased by each of such Underwriters and not joint.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 8 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution provisions contained in this
Section 8 and the representations and warranties of the Company contained
herein shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its directors or officers or any person controlling the
Company and (iii) acceptance of and payment for any of the Offered Securities.
9. Termination. This Agreement shall be subject to
termination, by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on
or by, as the case may be, the New York Stock Exchange or the American Stock
Exchange, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse, or (iv) a general moratorium on commercial
banking activities in New York shall have been declared by either federal or
New York State authorities, and (b) in the case of any of the events specified
in clauses (a)(i) through (iii), such event, singly or together with any other
such event, makes it, in the judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
10. Defaulting Underwriters. If, on the Closing Date [or the
Option Closing Date, as the case may be,](10), any one or more of the
Underwriters shall fail or refuse to purchase Underwriters' Securities that it
has or they have agreed to purchase hereunder on such date, and the aggregate
amount of Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Underwriters' Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of Underwriters' Securities set forth opposite
their respective names above bears to the aggregate amount of Underwriters'
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Underwriters' Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such amount
of Underwriters' Securities without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse
to purchase Underwriters' Securities to be purchased on such date and the
aggregate amount of Underwriters' Securities with respect to which such
default occurs is more than one-tenth of the aggregate amount of Underwriters'
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Underwriters' Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Manager or the Company shall have the
right to postpone the Closing Date but in no event for longer then seven days,
in order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be effected.
[If, on the Option Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Underwriters' Securities to be purchased on such date and
the aggregate amount of Underwriters' Securities with respect to which such
default occurs is more than one-tenth of the aggregate amount of Underwriters'
Securities to be purchased on such date, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase
Underwriters' Securities to be purchased on such date or (ii) purchase not
less than the amount of Underwriters' Securities that such non-defaulting
Underwriters would have been obligated to purchase on such date in the absence
of such default.](11) Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
---------
(10)Applicable if a green shoe is offered to Underwriters.
(11) Applicable if a green shoe is offered to Underwriters.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities.
Nothing in the foregoing sentence shall limit the Company's obligations to pay
expenses as provided in Section 6.
11. Miscellaneous. The Underwriting Agreement may be signed
in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same agreement.
Exhibit A
Opinion of Maryland Counsel for the Company
The opinion of Piper & Marbury, Maryland counsel for the
Company, to be delivered pursuant to Section 5(d) of the Underwriting
Agreement, shall be limited to the laws of the State of Maryland and shall be
to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws under the
State of Maryland; and the Company has the corporate power under the
laws of the State of Maryland and under its charter to own, lease and
operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus.
(ii) the Underwriting Agreement, the Indenture, the Debt
Warrant Agreement and the Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company;
(iii) the Offered Securities and the Debt Warrant Securities
have been duly authorized by the Company; and
(iv) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Indenture, the Offered Securities, the Debt Warrant
Securities, the Delayed Delivery Contracts and the Debt Warrant
Agreement will not contravene any provision of any material
applicable law or the articles of incorporation or by-laws of the
Company (excluding the securities or Blue Sky laws of the State of
Maryland, as to which such counsel need not express any opinion).
[(v) the [name of security into which the Debt Securities [and
Debt Warrant Securities] are convertible], initially reserved for
issuance upon conversion of the Debt Securities [and Debt Warrant
Securities] (the "Underlying Securities") have been duly authorized
and reserved for issuance; and
(vi) when the Underlying Securities are issued upon conversion
of the Debt Securities [and Debt Warrant Securities] in accordance
with the terms of the Debt Securities [and Debt Warrant Securities],
such Underlying Securities will be validly issued, fully paid and
non-assessable and will not be subject to any preemptive or other
right to subscribe for or purchase such Underlying Securities.](12)
---------
(12) Paragraphs (v) and (vi) should be included if the Offered Securities
are convertible.
Exhibit B
Opinion of Counsel for the Company
The opinion of Xxxxx X. Xxxxxx, Vice President and General
Counsel--Corporate Affairs of the Company, to be delivered pursuant to Section
5(d) of the Underwriting Agreement shall be to the effect that:
(i) to the best of such counsel's knowledge and information,
the Company is duly qualified as a foreign corporation to transact
business and in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify or
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, on the earnings or business
affairs of the Company and its subsidiaries, taken as a whole.
(ii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Indenture, the Offered Securities, the Debt Warrant
Securities, the Delayed Delivery Contracts and the Debt Warrant
Agreement will not contravene any provision of any material
applicable law or the articles of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company
or any Significant Subsidiary that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any Significant Subsidiary, and no consent, approval,
authorization or order of or qualification with any governmental body
or agency is required for the performance by the Company of its
obligations under the Underwriting Agreement, the Indenture, the
Offered Securities, the Debt Warrant Securities, the Delayed Delivery
Contract or the Debt Warrant Agreement, except such as may be
required by the securities or Blue Sky laws or insurance securities
laws of the various states in connection with the offer and sale of
the Offered Securities and the Debt Warrants;
(iii) to the best of such counsel's knowledge and information,
there are no legal or governmental proceedings pending or threatened
or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus that are not described as required;
(iv) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference
in the Prospectus (except for financial statements, supporting
schedules and other financial data included or incorporated by
reference therein, as to which such counsel need not express any
opinion) appeared on its face to be appropriately responsive in all
material respects to the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (2)
believes that (except for financial statements, supporting schedules
and other financial data included or incorporated by reference
therein, as to which such counsel need not express any belief, and
except for that part of the Registration Statement that constitutes
the Form T-1 heretofore referred to) each part of the Registration
Statement, when such part became effective did not, and as of the
date such opinion is delivered, does not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (3) is of the opinion that the Registration Statement and
Prospectus (except for financial statements, supporting schedules and
other financial data included or incorporated by reference therein, as
to which such counsel need not express any opinion, and except for
that part of the Registration Statement that constitutes the Form T-1
heretofore referred to) appear on their face to be appropriately
responsively in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (4) believes that (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein, as to which such counsel need not
express any belief) the Prospectus as of the date such opinion is
delivered does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; and
(v) to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement is in
effect under the Securities Act, and no proceedings for such purpose
are pending before or threatened by the Commission.
With respect to the foregoing paragraph (iv), such counsel may
state that her opinion and belief are based upon her participation in the
preparation of the Registration Statement and Prospectus and any amendments,
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified.
Exhibit C
Opinion of Special Counsel for the Company
The opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel to the
Company, to be delivered pursuant to Section 5(d) of the Underwriting
Agreement shall be to the effect that:
(i) the Indenture has been duly qualified under the Trust
Indenture Act and, assuming due authorization, execution and delivery
by the Company, is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (b) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(ii) assuming due authorization, execution and delivery by the
Company, the Debt Warrant Agreement is a valid and binding agreement
of the Company, enforceable in accordance with its terms except as (a)
the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (b) the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(iii) assuming due authorization, execution and delivery by
the Company, the Delayed Delivery Contracts are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(iv) when executed and authenticated in accordance with the
provisions of the Indenture or the Debt Warrant Agreement, as the
case may be, and delivered to and paid for (A) by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case
of Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the
case of the Contract Securities and (B) upon the exercise of Debt
Warrants pursuant to the Debt Warrant Agreement, in the case of the
Debt Warrant Securities, the Offered Securities and the Debt Warrant
Securities will be entitled to the benefits of the Indenture or the
Debt Warrant Agreement, as the case may be, and will be valid and
binding obligations of the Company, in each case enforceable in
accordance with their respective terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (b) rights of
acceleration, if any, and the availability of equitable remedies may
be limited by equitable principles of general applicability;
(v) the statements in the Prospectus under the captions
"Description of Debt Securities," "Description of Debt Warrants," and
"Plan of Distribution," in each case insofar as such statements
constitute summaries of the legal matters or documents or proceedings
referred to therein, fairly present the information called for with
respect to such legal matters, documents or proceedings and fairly
summarize the matters referred to therein;
(vi) such counsel (1) believes that (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein and any of the documents
incorporated by reference therein, as to which such counsel need not
express any belief, and except for that part of the Registration
Statement that constitutes the Form T-1 heretofore referred to) each
part of the Registration Statement, when such part became effective
did not, and as of the date such opinion is delivered, does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (2) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein and any of the documents
incorporated or deemed to be incorporated by reference therein, as to
which such counsel need not express any opinion, and except for that
part of the Registration Statement that constitutes the Form T-1
heretofore referred to) appear on their face to be appropriately
responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (3) believes that (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein and any of the documents
incorporated or deemed to be incorporated by reference therein, as to
which such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(vii) to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement is in
effect under the Securities Act, and no proceedings for such purpose
are pending before or threatened by the Commission.
With respect to the foregoing paragraph (vi), such counsel may
state that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the documents incorporated by
reference) and upon review and discussion of the contents thereof
(including documents incorporated by reference) but are without independent
check or verification, except as specified.
Schedule I
FORM OF DELAYED DELIVERY CONTRACT
________, 199_
Dear Sirs:
The undersigned hereby agrees to purchase from SunAmerica Inc.,
a Maryland corporation (the "Company"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule A annexed hereto
(the "Securities"), offered by the Company's Prospectus dated ______________,
199_ and Prospectus Supplement dated ________________, 19__, receipt of copies
of which are hereby acknowledged, at a purchase price stated in Schedule A and
on the further terms and conditions set forth in this Agreement. The
undersigned does not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Company Securities in
the principal amounts on the delivery dates set forth in Schedule A. Each
such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House or similar
next-day funds at the office of ______________________________, New York,
N.Y., at 10:00 A.M. (New York time) on the Delivery Date, upon delivery to
the undersigned of the Securities to be purchased by the undersigned on the
Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned as its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by
any purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested
that the Company sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set forth below.
This will become a binding agreement, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
Yours very truly,
___________________________
(Purchaser)
By ________________________
___________________________
(Title)
___________________________
___________________________
(Address)
Accepted:
SUNAMERICA INC.
By ________________________
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed is as
follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
----- --------------------- ----------
________________ ____________________ ___________
SCHEDULE A
Securities:
Principal Amounts to be Purchased:
Purchase Price:
Delivery Dates:
