Exhibit 4.16
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SUNAMERICA INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
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[ ] SUPPLEMENTAL INDENTURE
Dated as of [ ], 199[ ]
TO
INDENTURE
Dated as of March 15, 1995
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[ ]% Junior Subordinated Debentures
Due 20[ ]
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[ ] SUPPLEMENTAL INDENTURE, dated as of the [ ] day of
[ ] 199[ ] (the "[ ] 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 between the Company and the Trustee (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 [ ]% Junior Subordinated Debentures due 20[ ] (said series
being hereinafter referred to as the "Series [ ]% Debentures"), the form and
substance of such Series [ ]% Debentures and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this [
] Supplemental Indenture; and
WHEREAS, the Company has caused to be formed SunAmerica Capital
Trust [ ] ("SunAmerica Capital [ ]") 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 [ ], 199[ ] (the
"Original Declaration") and the filing of a certificate of trust with the
Secretary of State of the State of Delaware on [ ], 199[ ]; 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 [ ], 199[ ] (such Amended and Restated Declaration of Trust, as
amended from time to time, the "Declaration of Trust"); and
WHEREAS, SunAmerica Capital [ ] desires to issue its [ ]%
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 [ ],
SunAmerica Capital [ ] will purchase as trust assets Series [ ]% Debentures;
and
WHEREAS, pursuant to the Declaration of Trust, the legal title
to the Series [ ]% 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, upon the occurrence of a Special Event (as defined in
the Declaration of Trust) the Regular Trustees (as defined in the Declaration
of Trust) of SunAmerica Capital [ ] shall, unless the Series [ ]% Debentures
are redeemed as described herein, dissolve SunAmerica Capital [ ] 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 [ ]% 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 [ ]% 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 [ ] Supplemental
Indenture, and all requirements necessary to make this [ ] Supplemental
Indenture a valid instrument, in accordance with its terms, and to make the
Series [ ]% 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 [ ]% Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Series [ ]% 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 [ ]% Debentures
SECTION 1.01. There shall be and is hereby authorized a series
of Debentures designated the "[ ]% Junior Subordinated Debentures Due 20[
]", limited in aggregate principal amount to $[ ] (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 [ ]% Debentures in the aggregate principal amount of up to
$[ ] may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Series [ ]% 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. The Series [ ]% 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 [ ], 20[ ].
SECTION 1.02. (a) Except as provided in Section 1.02(b), the
Series [ ]% Debentures shall be issued in fully registered certificated form
without interest coupons. Principal and interest on the Series [ ]%
Debentures issued in certificated form will be payable, the transfer of such
Series [ ]% Debentures will be registrable and such Series [ ]% Debentures
will be exchangeable for Series [ ]% 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 [ ]% Debentures will only be
made upon surrender of the Series [ ]% Debentures to the Trustee.
Notwithstanding the foregoing, so long as the Property Trustee is the legal
owner and record holder of the Series [ ]% Debentures, the payment of the
principal of and interest (including Compounded Interest, if any) on the
Series [ ]% 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 [ ]% Debentures in certificated form may be
presented to the Trustee by the Property Trustee in
exchange for a Global Debenture representing the Series [
]% Debentures in an aggregate principal amount equal to
all Outstanding Series [ ]% 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 [ ]% Debentures in such
aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance
with the Indenture and this [ ] Supplemental
Indenture. Payments on the Series [ ]% 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 [ ]% 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 [ ]% 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 are presented to the
Debenture Registrar for transfer or reissuance at which
time such Preferred Security Certificate will be
cancelled and a Series [ ]% 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 [ ] Supplemental
Indenture. On issue of such Series [ ]% Debentures,
Series [ ]% 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 [ ]% Debenture will bear interest
at the rate of [ ]% per annum from [ ], 199[ ] 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 [ ], 199[ ]), to the person
in whose name such Series [ ]% Debenture or any predecessor Series [ ]%
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 [ ]% 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 [ ]% 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 [ ]% 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 [ ]% 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 [ ]% 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 [ ]% Debentures 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.
ARTICLE TWO
Optional Redemption
of the Series [ ]% Debentures
SECTION 2.01. Except as provided in Section 2.02, Series [ ]%
Debentures may not be redeemed by the Company prior to [ ], 20[ ].
Subject to the terms of Article Three of the Indenture, the Company shall have
the right to redeem the Series [ ]% Debentures, in whole or in part, from
time to time, on or after [ ], 20[ ], 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 and (i) the Regular Trustees and the Company
shall have received an opinion (a "Redemption Tax Opinion") of a nationally
recognized independent tax counsel experienced in such matters that, as a
result of a Tax Event, there is more than an insubstantial risk that the
Company would be precluded from deducting the interest on the Series [ ]%
Debentures for United States federal income tax purposes even if the Series [
]% Debentures were distributed to the holders of Preferred Securities and
Common Securities in liquidation of such holder's interest in SunAmerica
Capital [ ] as set forth in the Declaration of Trust or (ii) the Regular
Trustees shall have been informed by such tax counsel that a No Recognition
Opinion (as defined below) cannot be delivered to SunAmerica Capital [ ], the
Company shall have the right at any time, upon not less than 30 nor more than
60 days' notice, to redeem the Series [ ]% Debentures in whole or in part for
cash at the Optional Redemption Price within 90 days following the occurrence
of such Tax Event; provided, however, that, if at the time there is available
to the Company or the Regular Trustees on behalf of SunAmerica Capital [ ]
the opportunity to eliminate, within such 90 day period, the Tax Event by
taking some ministerial action ("Ministerial Action"), such as filing a form
or making an election, or pursuing some other similar reasonable measure,
which has no adverse effect on SunAmerica Capital [ ], the Company or the
holders of the Preferred Securities, the Company or the Regular Trustees on
behalf of SunAmerica Capital [ ] will pursue such measure in lieu of
redemption and provided further that the Company shall have no right to
redeem the Series [ ]% Debentures while the Regular Trustees on behalf of
SunAmerica Capital [ ] are pursuing any such Ministerial Action.
"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 "Dissolution Tax Opinion") to the
effect that on or after [ ], 199[ ] 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 announced or which
interpretation or pronouncement is issued or announced or which action is
taken, in each case on or after [ ], 199[ ] there is more than an
insubstantial risk that (i) SunAmerica Capital [ ] 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 [ ]% Debentures, (ii)
SunAmerica Capital [ ] 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 to SunAmerica
Capital [ ] on the Series [ ]% 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.
"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on any then applicable published revenue ruling of the Internal
Revenue Service, to the effect that the holders of the Preferred Securities
will not recognize any gain or loss for United States federal income tax
purposes as a result of a dissolution of SunAmerica Capital [ ] and
distribution of the Series [ ]% Debentures as provided in the Declaration of
Trust.
SECTION 2.03. If the Series [ ]% Debentures are only
partially redeemed pursuant to this Article Two, the Series [ ]% 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 [ ]%
Debentures are registered as a Global Debenture, the Depository shall
determine by lot the principal amount of such Series [ ]% 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 [ ]% 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 [ ]%
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 [ ]% Debentures, the Company shall have the
right, at any time during the term of the Series [ ]% Debentures, from time
to time to extend the interest payment period of such Series [ ]%
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 [ ]% 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 [ ]% 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 [ ]% Debentures including any Compounded
Interest which shall be payable to the holders of the Series [ ]%
Debentures in whose names the Series [ ]% Debentures are registered in the
Debenture register on the first record date after the end of the Extended
Interest Payment Period.
SECTION 3.02. (a) So long as the Property Trustee is the
legal owner and holder of record of the Series [ ]% Debentures, at the time
the Company selects an Extended Interest Payment Period, the Company shall
give both the Property Trustee and the 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 [ ]
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 [ ] 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 [ ]%
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 [ ]% 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 [ ]% 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 [ ]% 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
[ ]% 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 [ ]% Debentures to the holders of the Preferred Securities upon a
Dissolution Event, the Company will use its best efforts to list such Series
[ ]% 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 [ ]%
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 [ ]% Debentures as provided in
the Declaration of Trust.
ARTICLE FIVE
Form of Series [ ]% Debentures
SECTION 5.01. The Series [ ]% 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.
[ ]% JUNIOR SUBORDINATED DEBENTURE
DUE 20[ ]
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 [ ],
20[ ], and to pay interest on said principal sum from [ ], 199[ ] 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 [ ], 199[ ]
at the rate of [ ]% 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 if the
Preferred Securities of SunAmerica Capital Trust [ ] 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 [ ]% 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 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 [ ] Supplemental Indenture dated as of
[ ], 199[ ] between the Company and the Trustee (said Indenture as so
supplemented being hereinafter referred to as the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the 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 [ ]% Junior
Subordinated Debentures due 20[ ] and is limited in aggregate principal
amount as specified in said [ ] Supplemental Indenture.
Except as provided in the next paragraph, the Debentures may
not be redeemed by the Company prior to [ ], 20[ ]. 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 [ ],
20[ ] (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 after receipt of a Dissolution Tax Opinion (as defined below)
and (i) the Regular Trustees and the Company shall have received an opinion (a
"Redemption Tax Opinion") of a nationally recognized independent tax counsel
experienced in such matters that, as a result of a Tax Event, there is more
than an insubstantial risk that the Company would be precluded from deducting
the interest on the Series [ ]% Debentures for United States federal income
tax purposes even if the Series [ ]% Debentures were distributed to the
holders of Preferred Securities and Common Securities in liquidation of such
holder's interest in SunAmerica Capital [ ] as set forth in the Declaration
of Trust or (ii) the Regular Trustees shall have been informed by such tax
counsel that a No Recognition Opinion (as defined below) cannot be delivered
to SunAmerica Capital [ ], the Company shall have the right at any time, upon
not less than 30 nor more than 60 days' notice, to redeem the Series [ ]%
Debentures in whole or in part for cash at the Optional Redemption Price
within 90 days following the occurrence of such Tax Event; provided, however,
that, if at the time there is available to the Company or the Regular Trustees
on behalf of SunAmerica Capital [ ] the opportunity to eliminate, within such
90 day period, the Tax Event by taking some ministerial action ("Ministerial
Action"), such as filing a form or making an election, or pursuing some other
similar reasonable measure, which has no adverse effect on SunAmerica Capital
[ ], the Company or the holders of the Preferred Securities, the Company or
the Regular Trustees on behalf of SunAmerica Capital [ ] will pursue such
measure in lieu of redemption and provided further that the Company shall have
no right to redeem the Series [ ]% Debentures while the Regular Trustees on
behalf of SunAmerica Capital [ ] are pursuing any such Ministerial Action.
"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 "Dissolution Tax Opinion") to the
effect that on or after [ ], 19[ ], 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 announced or which
interpretation or pronouncement is issued or announced or which action is
taken, in each case on or after [ ], 19[ ], there is more than an
insubstantial risk that (i) SunAmerica Capital [ ] 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 [ ]% Debentures, (ii)
SunAmerica Capital [ ] 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 to SunAmerica
Capital [ ] on the Series [ ]% 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.
"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on any then applicable published revenue ruling of the Internal
Revenue Service, to the effect that the holders of the Preferred Securities
will not recognize any gain or loss for United States federal income tax
purposes as a result of a dissolution of SunAmerica Capital [ ] and
distribution of the Series [ ]% Debentures as provided in the Declaration of
Trust.
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 [ ]% 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 [ ]% 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.
In case 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 [ ]% 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 [ ]% Debentures including any Compounded
Interest which shall be payable to the holders of the Series [ ]% Debentures
in whose names the Series [ ]% 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 [ ]% Debentures
SECTION 6.01. Except as provided in Section 1.01 and this
Section 6.01, Series [ ]% Debentures in the aggregate principal amount equal
to $[ ] may, upon execution of this [ ] 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 [ ]% Debentures in the
aggregate principal amount of up to $[ ] may be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Series [ ]% 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 [
] Supplemental Indenture or in the form of Series [ ]% Debenture or
otherwise clearly required by the context hereof or thereof, all terms used
herein or in said form of Series [ ]% 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 [ ]
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 [ ]% Debentures. This [ ] 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 [ ] Supplemental Indenture.
SECTION 7.04. This [ ] Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this [
] Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
SUNAMERICA INC.
By ________________________________
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial
Officer
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 ) _______ __, 199_
On the ______ day of _______, in the year one thousand nine
hundred ninety-____, 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 Senior Vice
President and Treasurer 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 ) _______ __, 199_
On the ______ day of _______, in the year one thousand nine
hundred ninety-____, 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
