EXHIBIT 4.16
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SUNAMERICA INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
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FOURTH SUPPLEMENTAL INDENTURE
Dated as of November 13, 1996
TO
INDENTURE
Dated as of March 15, 1995
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8.30% Junior Subordinated Debentures
Due 2045
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FOURTH SUPPLEMENTAL INDENTURE, dated as of the 13th day of
November 1996 (the "Fourth Supplemental Indenture"), between SUNAMERICA INC.,
a corporation duly organized and existing under the laws of the State of
Maryland (hereinafter sometimes referred to as the "Company") and The First
National Bank of Chicago, a national banking association, as trustee
(hereinafter sometimes referred to as the "Trustee") under the Indenture dated
as of March 15, 1995 (as amended by a Supplemental Indenture dated as of
October 28, 1996) between the Company and the Trustee (as so amended, the
"Indenture"); as set forth in Section 7.01 hereto and except as otherwise set
forth herein, all terms used and not defined herein are used as defined in the
Indenture),
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of its junior subordinated
debentures (the "Debentures"), said Debentures to be issued from time to time
in series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debentures to
be known as its 8.30% Junior Subordinated Debentures due 2045 (said series
being hereinafter referred to as the "Series 8.30% Debentures"), the form and
substance of such Series 8.30% Debentures and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this
Fourth Supplemental Indenture; and
WHEREAS, the Company has caused to be formed SunAmerica Capital
Trust III ("SunAmerica Capital III") as a statutory business trust under the
Business Trust Act of the State of Delaware (12 Del. Code Section 3801 et
seq.) pursuant to a declaration of trust dated August 31, 1995 (the "Original
Declaration") and the filing of a certificate of trust with the Secretary of
State of the State of Delaware on September 6, 1995; and
WHEREAS, the Original Declaration is to be amended and restated
in its entirety pursuant to an Amended and Restated Declaration of Trust dated
as of November 13, 1996 (such Amended and Restated Declaration of Trust, as
amended from time to time, the "Declaration of Trust"); and
WHEREAS, SunAmerica Capital III desires to issue its 8.30%
Trust Originated Preferred Securities (the "Preferred Securities") and sell
such Preferred Securities to initial purchasers; and
WHEREAS, in connection with such purchases of Preferred
Securities and the related purchase by the Company of the Common Securities
(as defined in the Declaration of Trust) of SunAmerica Capital III, SunAmerica
Capital III will purchase as trust assets Series 8.30% Debentures; and
WHEREAS, pursuant to the Declaration of Trust, the legal title
to the Series 8.30% Debentures shall be owned and held of record in the name
of The Bank of New York or its successor under the Declaration of Trust, as
Property Trustee (the "Property Trustee"), in trust for the benefit of holders
of the Preferred Securities and the Common Securities; and
WHEREAS, the Company has the right at any time to cause
SunAmerica Capital III to be dissolved and cause to be distributed to the
holders of the Preferred Securities and Common Securities, on a Pro Rata basis
(determined as provided in the terms of the Preferred Securities and Common
Securities attached as Exhibits B and C to the Declaration of Trust), Series
8.30% Debentures and in connection with a Liquidation Distribution (as defined
in the Declaration of Trust) the Regular Trustees may cause to be distributed
to holders of Preferred Securities and Common Securities, on such a Pro Rata
basis, Series 8.30% Debentures (each a "Dissolution Event"); and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this Fourth Supplemental
Indenture, and all requirements necessary to make this Fourth Supplemental
Indenture a valid instrument, in accordance with its terms, and to make the
Series 8.30% Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed and fulfilled, and the execution and delivery hereof have been in
all respects duly authorized;
NOW THEREFORE, in consideration of the purchase and acceptance
of the Series 8.30% Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Series 8.30% Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of
the Series 8.30% Debentures
SECTION 1.01. (a) There shall be and is hereby authorized a
series of Debentures designated the "8.30% Junior Subordinated Debentures Due
2045", limited in aggregate principal amount to $310,670,125 (except as
provided in this Section 1.01 and 6.01). Upon exercise of the overallotment
option set forth in the Underwriting Agreement (as defined in the Declaration
of Trust), additional Series 8.30% Debentures in the aggregate principal
amount of up to $45,000,000 may be executed by the Company and delivered to
the Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver said Series 8.30% Debentures to or upon the written order of the
Company, which order shall be accompanied by evidence satisfactory to the
Trustee that the overallotment option has been exercised.
(b) The Series 8.30% Debentures shall mature and the
principal shall be due and payable together with all accrued and unpaid
interest thereon, including Compounded Interest (as hereinafter defined) on
September 30, 2045; provided, however, that the Company may at any time
shorten the maturity of the Series 8.30% Debentures, to a date not earlier
than November 13, 2001, upon the occurrence of a Deductibility of Interest Tax
Event (as hereinafter defined). If the Company elects to shorten the maturity
of the Series 8.30% Debentures, (i) the Company shall give notice of the new
maturity date of the Series 8.30% Debentures (the "Shortened Maturity Date")
to (A) holders of the Series 8.30% Debentures, (B) holders of the Preferred
Securities and Common Securities, (C) the Property Trustee, (D) SunAmerica
Capital III and (E) the Trustee and (ii) the Series 8.30% Debentures shall
mature and the principal shall be due and payable together with all accrued
and unpaid interest thereon, including Compounded Interest, on the Shortened
Maturity Date.
SECTION 1.02. (a) Except as provided in Section 1.02(b), the
Series 8.30% Debentures shall be issued in fully registered certificated form
without interest coupons. Principal and interest on the Series 8.30%
Debentures issued in certificated form will be payable, the transfer of such
Series 8.30% Debentures will be registrable and such Series 8.30% Debentures
will be exchangeable for Series 8.30% Debentures bearing identical terms and
provisions at the office or agency of the Company in the Borough of Manhattan,
The City and State of New York; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the registered
holder at such address as shall appear in the Debenture register and that the
payment of principal with respect to the Series 8.30% Debentures will only be
made upon surrender of the Series 8.30% Debentures to the Trustee.
Notwithstanding the foregoing, so long as the Property Trustee is the legal
owner and record holder of the Series 8.30% Debentures, the payment of the
principal of and interest (including Compounded Interest, if any) on the
Series 8.30% Debentures held by the Property Trustee will be made by the
Company in immediately available funds on the payment date therefor at such
place and to the Property Account (as defined in the Declaration of Trust)
established and maintained by the Property Trustee pursuant to the Declaration
of Trust.
(b) In connection with a Dissolution Event;
(i) Series 8.30% Debentures in certificated form may be
presented to the Trustee by the Property Trustee in
exchange for a Global Debenture representing the Series
8.30% Debentures in an aggregate principal amount equal
to all Outstanding Series 8.30% Debentures, to be
registered in the name of the Depository, or its nominee,
and delivered by the Trustee to the Depository for
crediting to the accounts of its participants pursuant to
the instructions of the Regular Trustees (as defined in
the Declaration of Trust). The Company upon any such
presentation shall execute a Global Debenture
representing the Series 8.30% Debentures in such
aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance
with the Indenture and this Fourth Supplemental
Indenture. Payments on the Series 8.30% Debentures
issued as a Global Debenture will be made to the
Depository; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, Series 8.30% Debentures in
certificated form may be presented to the Trustee by the
Property Trustee and any Preferred Security Certificate
(as defined in the Declaration of Trust) which represents
Preferred Securities other than Preferred Securities held
by the Clearing Agency (as defined in the Declaration of
Trust) or its nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial
interests in Series 8.30% Debentures presented to the
Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation
amount of the Non Book-Entry Preferred Securities until
such Preferred Security Certificate is presented to the
Debenture Registrar for transfer or reissuance at which
time such Preferred Security Certificate will be
cancelled and a Series 8.30% Debenture, registered in the
name of the holder of the Preferred Security Certificate
or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Security Certificate
canceled will be executed by the Company and delivered to
the Trustee for authentication and delivery in accordance
with the Indenture and this Fourth Supplemental
Indenture. On issue of such Series 8.30% Debentures,
Series 8.30% Debentures with an equivalent aggregate
amount that were presented by the Property Trustee to the
Trustee will be deemed to have been canceled.
SECTION 1.03. Each Series 8.30% Debenture will bear interest
at the rate of 8.30% per annum from November 13, 1996 until the principal
thereof becomes due and payable, and on any overdue principal and (to the
extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest at the same rate per annum, compounded
quarterly, payable (subject to the provisions of Article Three) quarterly in
arrears on March 30, June 30, September 30 and December 30 of each year (each,
an "Interest Payment Date", commencing on December 30, 1996), to the person in
whose name such Series 8.30% Debenture or any predecessor Series 8.30%
Debenture is registered, at the close of business on the regular record date
for such interest installment, which, except as set forth below, shall be, in
respect of any Series 8.30% Debentures of which the Property Trustee is the
registered holder of or a Global Debenture, the close of business on the
business day next preceding that Interest Payment Date. Notwithstanding the
foregoing sentence, if the Preferred Securities are no longer in book-entry
only form or if pursuant to the provisions of Section 2.11(c) of the Indenture
the Series 8.30% Debentures are not represented by a Global Debenture, the
regular record dates for such interest installment shall be the close of
business on the March 15, June 15, September 15 or December 15 next preceding
that Interest Payment Date. Any such interest installment not punctually paid
or duly provided for shall forthwith cease to be payable to the registered
holders on such regular record date, and may be paid to the person in whose
name the Series 8.30% Debenture (or one or more Predecessor Debentures) is
registered at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice whereof shall
be given to the registered holders of the Series 8.30% Debentures not less
than 10 days prior to such special record date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Series 8.30% Debentures may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months and for any period
shorter than a full quarterly interest period for which interest is computed,
the amount of interest payable will be computed on the basis of the actual
number of days elapsed in such a 30-day month. In the event that any date on
which interest is payable on the Series 8.30% Debentures is not a business
day, then payment of interest payable on such date will be made on the next
succeeding day that is a business day (and without any interest or other
payment in respect of any such delay), except that, if such business day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding business day, in each case with the same force and
effect as if made on such date.
ARTICLE TWO
Optional Redemption
of the Series 8.30% Debentures
SECTION 2.01. Except as provided in Section 2.02, Series 8.30%
Debentures may not be redeemed by the Company prior to November 13, 2001.
Subject to the terms of Article Three of the Indenture, the Company shall have
the right to redeem the Series 8.30% Debentures, in whole or in part, from
time to time, on or after November 13, 2001, at a redemption price equal to
100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon, including Compounded Interest, if any, to the date of such
redemption (the "Optional Redemption Price"). Any redemption pursuant to this
paragraph will be made upon not less than 30 nor more than 60 days' notice, at
the Optional Redemption Price.
SECTION 2.02. If, at any time, a Tax Event (as defined below)
shall occur or be continuing, the Company shall have the right at any time,
upon not less than 30 nor more than 60 days' notice, to redeem the Series
8.30% Debentures in whole or in part for cash at the Optional Redemption Price
within 90 days following the occurrence of such Tax Event.
"Tax Event" means that the company and the Regular Trustees
shall have obtained an opinion of nationally recognized independent tax
counsel experienced in such matters (a "Tax Event Opinion") to the effect
that on or after November 7, 1996 as a result of (a) any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
or taxing authority thereof or therein, (b) any amendment to, or change in,
an interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position
or (d) any action taken by any governmental agency or regulatory authority,
which amendment or change is enacted, promulgated, issued or effective or
which interpretation or pronouncement is issued or announced or which
action is taken, in each case on or after November 7, 1996 there is more
than an insubstantial risk that (i) SunAmerica Capital III is, or will be
within 90 days of the date thereof, subject to United States federal income
tax with respect to income accrued or received on the Series 8.30%
Debentures, (ii) SunAmerica Capital III is, or will be within 90 days of
the date thereof, subject to more than a de minimis amount of taxes, duties
or other governmental charges or (iii) interest payable by the Company on
the Series 8.30% Debentures is not, or within 90 days of the date thereof
will not be, deductible by the Company for United States federal income tax
purposes (any Tax Event set forth in this clause (iii) being a
"Deductibility of Interest Tax Event").
SECTION 2.03. If the Series 8.30% Debentures are only
partially redeemed pursuant to this Article Two, the Series 8.30% Debentures
will be redeemed pro rata or by lot or by any other method utilized by the
Trustee, provided that if at the time of redemption, the Series 8.30%
Debentures are registered as a Global Debenture, the Depository shall
determine by lot the principal amount of such Series 8.30% Debentures held by
each Debenture Holder to be redeemed in accordance with its customary
procedures. Notwithstanding the foregoing, if a partial redemption of the
Series 8.30% Debentures would result in the delisting of the Preferred
Securities by any national securities exchange or other organization on which
the Preferred Securities are then listed, the Company shall not be permitted
to effect such partial redemption and will only redeem the Series 8.30%
Debentures in whole.
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. So long as the Company is not in default in the
payment of interest on the Series 8.30% Debentures, the Company shall have the
right, at any time during the term of the Series 8.30% Debentures, from
time to time to extend the interest payment period of such Series 8.30%
Debentures for up to 20 consecutive quarterly interest periods (the
"Extended Interest Payment Period"), at the end of which period the Company
shall pay all interest accrued and unpaid thereon (together with interest
thereon at the rate of 8.30% per annum to the extent permitted by
applicable law, compounded quarterly ("Compounded Interest")). During such
Extended Interest Payment Period the Company shall not declare or pay any
dividend on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of its common stock or preferred
stock or make any guarantee payments with respect thereto; provided that
(i) the Company may pay accrued dividends (and cash in lieu of fractional
shares) upon conversion of its Series E Mandatory Conversion Premium
Dividend Preferred Stock or upon the conversion of any other preferred
stock of the Company as may be outstanding from time to time, in each case
in accordance with the terms of such stock and (ii) the foregoing will not
apply to any stock dividends paid by the Company. Prior to the termination
of any such Extended Interest Payment Period, the Company may pay all or
any portion of the interest accrued on the Series 8.30% Debentures on any
Interest Payment Date to holders of record on the regular record date for
such Interest Payment Date or from time to time further extend such Period;
provided that such Period together with all such further extensions thereof
shall not exceed 20 consecutive quarterly interest periods. Upon the
termination of any Extended Interest Payment Period and upon the payment of
all accrued and unpaid interest then due, together with Compounded
Interest, the Company may select a new Extended Interest Payment Period,
subject to the foregoing requirements. No interest shall be due and
payable during an Extended Interest Payment Period, except at the end
thereof. At the end of the Extended Interest Payment Period the Company
shall pay all interest accrued and unpaid on the Series 8.30% Debentures
including any Compounded Interest which shall be payable to the holders of
the Series 8.30% Debentures in whose names the Series 8.30% Debentures are
registered in the Debenture register on the first record date after the end
of the Extended Interest Payment Period. The failure by the Company to
make interest payments during an Extended Interest Payment Period would not
constitute a default or Event of Default under the Indenture.
SECTION 3.02. (a) So long as the Property Trustee is the sole
legal owner and holder of record of the Series 8.30% Debentures, at the time
the Company selects an Extended Interest Payment Period, the Company shall
give the Property Trustee written notice of its selection of such Extended
Interest Payment Period one business day prior to the earlier of (i) the next
succeeding date on which distributions on the Preferred Securities are payable
or (ii) the date SunAmerica Capital III is required to give notice of the
record date or the date such distributions are payable to the New York Stock
Exchange or other applicable self-regulatory organization or to holders of the
Preferred Securities, but in any event not less than one business day prior to
such record date. The Company shall cause SunAmerica Capital III to give
notice of the Company's selection of such Extended Interest Payment Period to
the holders of the Preferred Securities.
(b) If as a result of a Dissolution Event Series 8.30%
Debentures have been distributed to holders of Preferred Securities and Common
Securities, at the time the Company selects an Extended Interest Payment
Period, the Company shall give the holders of the Series 8.30% Debentures and
the Trustee written notice of its selection of such Extended Interest Payment
Period at least 10 business days prior to the earlier of (i) the next
succeeding Interest Payment Date or (ii) the date the Company is required to
give notice of the record or payment date of such interest payment to the New
York Stock Exchange or other applicable self-regulatory organization or to
holders of the Series 8.30% Debentures.
SECTION 3.03. The quarter in which any notice is given
pursuant to Section 3.02 shall be counted as one of the 20 quarters permitted
in the maximum Extended Interest Payment Period permitted under this Article
Three.
ARTICLE FOUR
Covenants Applicable to Series 8.30% Debentures
SECTION 4.01. So long as any Preferred Securities remain
outstanding, the Company will not declare or pay any dividends on, or redeem,
purchase, acquire or make a distribution or liquidation payment with respect
to, any of its common stock or preferred stock or make any guarantee payments
with respect thereto if at such time (i) the Company shall be in default with
respect to its Guarantee Payments (as defined in the Guarantee Agreement) or
other payment obligations under the Guarantee Agreement, (ii) there shall have
occurred any Event of Default under the Indenture with respect to the Series
8.30% Debentures or (iii) the Company shall have given notice of its election
of an Extended Interest Payment Period and such Period, or any extension
thereof, is continuing; provided that (a) the Company will be permitted to pay
accrued dividends (and cash in lieu of fractional shares) upon the conversion
of any of its Series E Mandatory Conversion Premium Dividend Preferred Stock
or upon the conversion of any other preferred stock of the Company as may be
outstanding from time to time, in each case in accordance with the terms of
such stock and (b) the foregoing will not apply to any stock dividends paid by
the Company.
SECTION 4.02. In connection with the distribution of the
Series 8.30% Debentures to the holders of the Preferred Securities upon a
Dissolution Event, the Company will use its best efforts to list such Series
8.30% Debentures on the New York Stock Exchange or on such other exchange as
the Preferred Securities are then listed and traded.
SECTION 4.03. The Company covenants and agrees for the benefit
of the holders of the Preferred Securities to comply fully with all of its
obligations and agreements under the Declaration of Trust, including, without
limitation, its obligations under Article IV thereof.
SECTION 4.04. Prior to the distribution of Series 8.30%
Debentures to the holders of Preferred Securities upon a Dissolution Event,
the Company covenants and agrees for the benefit of the holders of the
Preferred Securities (i) not to cause or permit the Common Securities to be
transferred except as permitted by the Declaration of Trust and (ii) not to
take any action which would cause the Trust to cease to be treated as a
grantor trust for United States federal income tax purposes, except in
connection with a distribution of the Series 8.30% Debentures as provided in
the Declaration of Trust.
ARTICLE FIVE
Form of Series 8.30% Debentures
SECTION 5.01. The Series 8.30% Debentures and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially
in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE NOTE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of a Depository. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Debenture (other than a transfer of this Debenture as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository) may be registered
except in limited circumstances.
Unless this Debenture is presented by an authorized
representative to The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.]
No. $
CUSIP NO.
SUNAMERICA INC.
8.30% JUNIOR SUBORDINATED DEBENTURE DUE 2045
SunAmerica Inc., a corporation duly organized and existing
under the laws of the State of Maryland (herein referred to as the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of _________
Dollars on September 30, 2045 (or on a Shortened Maturity Date (as defined
below) established by the Company as further described herein), and to pay
interest on said principal sum from November 13, 1996 or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on March 30, June 30, September 30 and December
30 of each year commencing December 30, 1996 at the rate of 8.30% per annum
plus Compounded Interest, if any, until the principal hereof shall have become
due and payable, and on any overdue principal and premium, if any, and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at
the same rate per annum. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of twelve 30-day
months and for any period shorter than a full quarterly interest period for
which interest is computed, the amount of interest payable will be computed on
the basis of the actual number of days elapsed in such a 30-day month. In the
event that any date on which interest is payable on this Debenture is not a
business day, then payment of interest payable on such date will be made on
the next succeeding day which is a business day (and without any interest or
other payment in respect of any such delay), except that, if such business day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding business day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Debentures, as defined in said Indenture) is
registered at the close of business on the regular record date for such
interest installment, [which shall be the close of business on the day next
preceding such Interest Payment Date, provided that if the Preferred
Securities of SunAmerica Capital Trust III are no longer in book-entry only
form, the regular record dates shall be the close of business on the March 15,
June 15, September 15 or December 15 next preceding such Interest Payment
Date] [IF PURSUANT TO THE PROVISIONS OF SECTION 2.11(c) OF THE INDENTURE THE
SERIES 8.30% DEBENTURES ARE NOT REPRESENTED BY A GLOBAL DEBENTURE -- which
shall be the close of business on the March 15, June 15, September 15 or
December 15 next preceding such Interest Payment Date.] Any such interest
installment not punctually paid or duly provided for shall forthwith cease to
be payable to the registered holders on such regular record date, and may be
paid to the person in whose name this Debenture (or one or more Predecessor
Debentures) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered holders of this series of Debentures
not less than 10 days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture. The principal of (and premium, if any) and the interest on this
Debenture shall be payable at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City and State of New York,
in any coin or currency of the United States of America which at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the registered holder at such address as shall appear in the
Debenture register and that the payment of principal will only be made upon
the surrender of this Debenture to the Trustee. Notwithstanding the
foregoing, so long as the owner and record holder of this Debenture is the
Property Trustee (as defined in the Indenture referred to on the reverse
hereof), the payment of the principal of (and premium, if any) and interest
(including Compounded Interest, if any) on this Debenture will be made at
such place and to such account of the Property Trustee as may be designated
by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such Holder upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
Unless the Certificate of Authentication hereon has been
executed by the Trustee referred to on the reverse side hereof, this Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to
be executed.
Dated __________________________
SUNAMERICA INC.
By _____________________________
Attest:
By _____________________________
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
_____________________________
or as Authentication Agent
By _____________________________ _____________________________
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures
of the Company (herein sometimes referred to as the "Debentures"), specified
in the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of March 15, 1995 (as amended by a
Supplemental Indenture dated as of October 28, 1996) duly executed and
delivered between the Company and The First National Bank of Chicago, a
national banking association, as Trustee (herein referred to as the
"Trustee"), as supplemented by the Fourth Supplemental Indenture dated as of
November 13, 1996 between the Company and the Trustee (said Indenture as so
amended and supplemented being hereinafter referred to as the "Indenture"), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the holders
of the Debentures, and, to the extent specifically set forth in the Indenture,
the holders of Senior Indebtedness and Preferred Securities. By the terms of
the Indenture, the Debentures are issuable in series which may vary as to
amount, date of maturity, rate of interest and in other respects as in the
Indenture provided. This series of Debentures is designated the 8.30% Junior
Subordinated Debentures due 2045 and is limited in aggregate principal amount
as specified in said Fourth Supplemental Indenture.
The Indenture contains provisions permitting the Company to
shorten the maturity of the Series 8.30% Debentures, to a date not earlier
than November 13, 2001, upon the occurrence of a Deductibility of Interest Tax
Event (as hereinafter defined). If the Company elects to shorten the maturity
of the Series 8.30% Debentures, (i) the Company shall give notice of the new
maturity date of the Series 8.30% Debentures (the "Shortened Maturity Date")
to (A) holders of the Series 8.30% Debentures, (B) holders of the Preferred
Securities and Common Securities, (C) the Property Trustee, (D) SunAmerica
Capital Trust III and (E) the Trustee and (ii) the Series 8.30% Debentures
shall mature and the principal shall be due and payable together with all
accrued and unpaid interest thereon, including Compounded Interest, on the
Shortened Maturity Date.
Except as provided in the next paragraph, the Series 8.30%
Debentures may not be redeemed by the Company prior to November 13, 2001. The
Company shall have the right to redeem this Debenture at the option of the
Company, without premium or penalty, in whole or in part at any time on or
after November 13, 2001 (an "Optional Redemption"), at a redemption price
equal to 100% of the principal amount plus any accrued but unpaid interest,
including any Compounded Interest, if any, to the date of such redemption (the
"Optional Redemption Price"). Any redemption pursuant to this paragraph will
be made upon not less than 30 nor more than 60 days' notice, at the Optional
Redemption Price. If the Debentures are only partially redeemed by the
Company pursuant to an Optional Redemption, the Debentures will be redeemed
pro rata or by lot or by any other method utilized by the Trustee; provided
if, at the time of redemption, the Debentures are registered as a Global
Debenture, the Depository shall determine the principal amount of such
Debentures held by each holder of Debentures to be redeemed in accordance
with its customary procedures.
If, at any time, a Tax Event (as defined below) shall occur or
be continuing, the Company shall have the right at any time, upon not less
than 30 nor more than 60 days' notice, to redeem the Series 8.30% Debentures
in whole or in part for cash at the Optional Redemption Price within 90 days
following the occurrence of such Tax Event.
"Tax Event" means that the Regular Trustees shall have obtained
an opinion of nationally recognized independent tax counsel experienced in
such matters (a "Tax Event Opinion") to the effect that on or after
November 7, 1996, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, (b) any amendment to, or change in, an
interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position
or (d) any action taken by any governmental agency or regulatory authority,
which amendment or change is enacted, promulgated, issued or effective or
which interpretation or pronouncement is issued or announced or which
action is taken, in each case on or after November 7, 1996, there is more
than an insubstantial risk that (i) SunAmerica Capital III is, or will be
within 90 days of the date thereof, subject to United States federal income
tax with respect to income accrued or received on the Series 8.30%
Debentures, (ii) SunAmerica Capital III is, or will be within 90 days of
the date thereof, subject to more than a de minimis amount of taxes, duties
or other governmental charges or (iii) interest payable by the Company on
the Series 8.30% Debentures is not, or within 90 days of the date thereof
will not be, deductible by the Company for United States federal income tax
purposes (any Tax Event set forth in this clause (iii) being a
"Deductibility of Interest Tax Event").
If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption or as a result of a Tax Event as described
above, the Debentures will be redeemed pro rata or by lot or in some other
equitable manner determined by the Trustee. Notwithstanding the foregoing, if
a partial redemption of the Series 8.30% Debentures would result in the
delisting of the Preferred Securities by any national securities exchange or
other organization on which the Preferred Securities are then listed, the
Company shall not be permitted to effect such partial redemption and will only
redeem the Series 8.30% Debentures in whole.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures of this series for unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of
the entire indebtedness of this Debenture upon compliance by the Company with
certain conditions set forth therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture (and, in the case of any series
of Debentures held as trust assets of a SunAmerica Capital Trust and with
respect to which a Security Exchange has not theretofore occurred, such
consent of holders of the Preferred Securities and the Common Securities of
such SunAmerica Capital Trust as may be required under the Declaration of
Trust of such SunAmerica Capital Trust), to execute supplemental indentures
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Debentures; provided, however, that no such supplemental indenture shall
(i) extend the fixed maturity of any Debentures of any series, or reduce
the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable upon the
redemption thereof, without the consent of the holder of each Debenture so
affected or (ii) reduce the aforesaid percentage of Debentures, the holders
of which are required to consent to any such supplemental indenture,
without the consent of the holders of each Debenture (and, in the case of
any series of Debentures held as trust assets of a SunAmerica Capital Trust
and with respect to which a Security Exchange has not theretofore occurred,
such consent of the holders of the Preferred Securities and the Common
Securities of such SunAmerica Capital Trust as may be required under the
Declaration of Trust of such SunAmerica Capital Trust) then outstanding and
affected thereby. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the Debentures of a
series at the time outstanding affected thereby (subject, in the case of
any series of Debentures held as trust assets of a SunAmerica Capital Trust
and with respect to which a Securities Exchange has not theretofore
occurred, to such consent of holders of Preferred Securities and Common
Securities of such SunAmerica Capital Trust as may be required under the
Declaration of Trust of such SunAmerica Capital Trust), on behalf of the
Holders of the Debentures of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture with respect to such series, and its
consequences, except a default in the payment of the principal of or
premium, if any, or interest on any of the Debentures of such series. Any
such consent or waiver by the registered Holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon
such Holder and upon all future Holders and owners of this Debenture and of
any Debenture issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
Subject to Section 13.12 of the Indenture, no reference herein
to the Indenture (other than such Section) and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any,
and interest on this Debenture at the time and place at the rate and in the
money herein prescribed.
So long as the Company is not in default in the payment of
interest on the Debentures, the Company shall have the right, at any time
during the term of the Debentures, from time to time to extend the interest
payment period of such Debentures for up to 20 consecutive quarterly interest
periods (the "Extended Interest Payment Period"), at the end of which period
the Company shall pay all interest then accrued and unpaid (together with
interest thereon at the rate of 8.30% per annum to the extent permitted by
applicable law, compounded quarterly ("Compounded Interest")). During such
Extended Interest Payment Period the Company shall not declare or pay any
dividend on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of its common stock or preferred
stock, or make any guarantee payments with respect thereto, provided that (a)
the Company may pay accrued dividends (and cash in lieu of fractional shares)
upon conversion of its Series E Mandatory Conversion Premium Dividend
Preferred Stock or upon the conversion of any other preferred stock of the
Company as may be outstanding from time to time, in each case in accordance
with the terms of such stock and (b) the foregoing will not apply to any stock
dividends paid by the Company. Prior to the termination of any such Extended
Interest Payment Period, the Company may pay all or any portion of the
interest accrued on the Debentures on any Interest Payment Date to holders of
record on the regular record date for such Interest Payment Date or from time
to time further extend such Extended Interest Payment Period, provided that
such Period together with all such further extensions thereof shall not exceed
20 consecutive quarterly interest periods. At the termination of any such
Extended Interest Payment Period and upon the payment of all accrued and
unpaid interest then due, together with Compounded Interest, the Company may
select a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest on this Debenture shall be due and payable during an
Extended Interest Payment Period, except at the end thereof. At the end of
the Extended Interest Payment Period the Company shall pay all interest
accrued and unpaid on the Series 8.30% Debentures including any Compounded
Interest which shall be payable to the holders of the Series 8.30% Debentures
in whose names the Series 8.30% Debentures are registered in the Debenture
register on the first record date after the end of the Extended Interest
Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Debenture register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Company
in the Borough of Manhattan, The City and State of New York accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures
of authorized denominations and for the same aggregate principal amount and
series will be issued to the designated transferee or transferees. No service
charge will be made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Debenture Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest due hereon
and for all other purposes, and neither the Company nor the Trustee nor any
paying agent nor any Debenture Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
[If certificated Debentures -- The Debentures of this series
are issuable only in registered form without coupons in denominations of $25
and any integral multiple thereto.] [If Global Debenture -- This Global
Debenture is exchangeable for Debentures in definitive form under certain
limited circumstances set forth in the Indenture. Debentures of this series
so issued are issuable only in registered form without coupons in
denominations of $25 or any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations [If Global Debenture -- herein
and] therein set forth, Debentures of this series [If Global Debenture -- so
issued] are exchangeable for a like aggregate principal amount of Debentures
of this series of a different authorized denomination, as requested by the
Holder surrendering the same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE SIX
Original Issue of Series 8.30% Debentures
SECTION 6.01. Except as provided in Section 1.01 and this
Section 6.01, Series 8.30% Debentures in the aggregate principal amount equal
to $310,670,125 may, upon execution of this Fourth Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and
the trustee shall thereupon authenticate and deliver said Debentures to or
upon the written order of the Company, signed by its Chairman, its President,
or any Vice President and its Treasurer or an Assistant Treasurer, without any
further action by the Company. Upon exercise of the overallotment option set
forth in the Underwriting Agreement, additional Series 8.30% Debentures in the
aggregate principal amount of up to $45,000,000 may be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Series 8.30% Debentures executed as
aforesaid by the Company, to or upon the written order of the Company, which
order shall be accompanied by evidence satisfactory to the Trustee that the
overallotment option has been exercised.
ARTICLE SEVEN
Miscellaneous Provisions
SECTION 7.01. Except as otherwise expressly provided in this
Fourth Supplemental Indenture or in the form of Series 8.30% Debenture or
otherwise clearly required by the context hereof or thereof, all terms used
herein or in said form of Series 8.30% Debenture that are defined in the
Indenture shall have the several meanings respectively assigned to them
thereby.
SECTION 7.02. The Indenture, as supplemented by this Fourth
Supplemental Indenture, is in all respects ratified and confirmed; provided
that the words ", may after a period of 30 days has elapsed from such holder's
written request to the Property Trustee to enforce such rights," in the ninth
and tenth lines of Section 13.12 of the Indenture shall not be applicable to
the Series 8.30% Debentures. This Fourth Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 7.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this Fourth Supplemental Indenture.
SECTION 7.04. This Fourth Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
SUNAMERICA INC.
By _____________________________
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
Attest:
_____________________________
Name: Xxxxx X. Xxxxxx
Title: Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By _____________________________
Name:
Title:
Attest:
_____________________________
Assistant Secretary
STATE OF CALIFORNIA )
) ss.:
COUNTY OF Los Angeles ) November 13, 1996
On the 13th day of November, in the year one thousand nine
hundred ninety-six, before me personally came Xxxxx X. Xxxxxxx to me known,
who, being by me duly sworn, did depose and say that he resides at 0000
Xxxxxxxx Xxxxxx, #00, Xxxxx Xxxxxx, Xxxxxxxxxx 00000; that he is Executive
Vice President of SUNAMERICA INC., one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporation
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
_____________________________
NOTARY PUBLIC
My Commission Expires
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX ) November 13, 1996
On the 13th day of November, in the year one thousand nine
hundred ninety-six, before me personally came X. X. Xxxxxxx to me known, who,
being by me duly sworn, did depose and say that he resides at 000 Xxxxxx Xxx.,
Xxxxxxx Xxxxx, Xxxxxxxx, 00000 that he is a Vice President of THE FIRST
NATIONAL BANK OF CHICAGO, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation and that he signed his name thereto by like authority.
_____________________________
NOTARY PUBLIC
My Commission Expires
