Exhibit 4.12
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SUNAMERICA INC.
AND
[_________________________________]
as Trustee
-------------------
[SECOND] SUPPLEMENTAL INDENTURE
Dated as of [____________], 199[_]
TO
INDENTURE
Dated as of March 15, 1995
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[____]% Junior Subordinated Debentures,
Series [_], Due 20[__]
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[SECOND] SUPPLEMENTAL INDENTURE, dated as of the [____] day
of [__________], 199[_] (the "[Second] 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 [_________________________], 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,
as supplemented by the First Supplemental Indenture thereto dated as of
March 15, 1995 (as so supplemented, the "Indenture"; as set forth in
Section 7.01 hereto, 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, Series [_], 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
[Second] 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 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 [___________], 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 [____]%
[_______] 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 [_], the
Company will deposit, and SunAmerica Capital [_] will purchase, respectively,
as trust assets Series [_] Debentures;(*) and
____________
(*) An amended and restated Supplemental Indenture covering additional
Debentures may be needed in respect of additional Preferred Securities to be
issued if an over-allotment option is granted to Underwriters.
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 [Second] Supplemental
Indenture, and all requirements necessary to make this [Second] 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, Series [_], Due 20[__]", limited in aggregate principal amount
to the sum of (i) $[________] plus (ii) a dollar amount equal to the
principal amount of Series [_] Debentures purchased by SunAmerica Capital
[_] with the proceeds received by SunAmerica Capital [_] from the purchase
by the Company of the Common Securities of SunAmerica Capital [_], which
amount shall be as set forth in any written order of the Company for the
authentication and delivery of Series [_] Debentures. 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[__], and shall be issued in the
form of registered Series [_] Debentures without coupons.(*)
____________
(*) See previous footnote regarding changes which may be required if an
over-allotment option is granted to Underwriters.
SECTION 1.02. The Series [_] Debentures shall be issued in
certificated form. 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.
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
[___________], 19[__]), 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 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 [__________],
19[__].] [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 [___________], 19[__],] 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 [__________], 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.
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. 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 (i) 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 or (ii) make any
payment of interest, premium (if any) or principal or any debt securities
issued by the Company which rank pari passu with or junior to the Series
[_] Debentures; provided that (i) the Company may pay accrued dividends
(and cash in lieu of fractional shares) upon conversion of its Series D
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 (a) 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 or (b) make any payment of
interest, premium (if any) or principal on any debt securities issued by
the Company that rank pari passu with or junior to the Series [_]
Debentures, 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 D Mandatory Conversion Premium
Dividend Preferred Stock [and [_____] Preferred Stock] 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)
No. $
CUSIP NO. [_______]
SUNAMERICA INC.
[____]% JUNIOR SUBORDINATED DEBENTURE,
Series [_], 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
December 30, 20[__], and to pay interest on said principal sum from
[__________], 19[__] 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 [__________] 30, 19[__] 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 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.
[_________________________________], 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
[_______________________], a [national banking association], as Trustee
(herein referred to as the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of March 15, 1995 between the Company and
the Trustee and the [Second] 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, Series [_], due 20[__] and is
limited in aggregate principal amount as specified in said [Second]
Supplemental Indenture.
[Except as provided in the next paragraph, the Debentures
may not be redeemed by the Company prior to [__________], 19[__].] 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 [__________], 19[__]] (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, 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 13.13 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 (i) 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 or (ii) make any payment of interest, premium (if any) or
principal or any debt securities issued by the Company which rank pari
passu with or junior to the Series [_] Debentures, provided that (a) the
Company may pay accrued dividends (and cash in lieu of fractional shares)
upon conversion of its Series D 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.
The Debentures of this series are issuable only in
registered form without coupons in denominations of $25 and any integral
multiple thereto. As provided in the Indenture and subject to certain
limitations therein set forth, Debentures of this Series 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. Series [_] Debentures in the aggregate
principal amount equal to the sum of $[________] plus a dollar amount equal
to the principal amount of Series [_] Debentures purchased by SunAmerica
Capital [_] with the proceeds received by SunAmerica Capital [_] from the
purchase by the Company of the Common Securities of SunAmerica Capital [_],
may, upon execution of this [Second] 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.(*)
____________
(*) See preceding footnote regarding changes which may be required if
an over-allotment option is granted to Underwriters.
ARTICLE SEVEN
Miscellaneous Provisions
SECTION 7.01. Except as otherwise expressly provided in
this [Second] 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
[Second] Supplemental Indenture, is in all respects ratified and confirmed,
and this [Second] 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 [Second] Supplemental Indenture.
SECTION 7.04. This [Second] 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
[Second] 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:
Title:
Attest:
_________________________
Name:
Title:
[___________________________],
as Trustee
By _________________________
Name:
Title:
Attest:
_________________________
Assistant Secretary
STATE OF CALIFORNIA )
) ss.:
COUNTY OF Los Angeles ) [_____], 19[__]
On the ______ day of [______], in the year one thousand nine
hundred ninety-[______], before me personally came [___________] to me known,
who, being by me duly sworn, did depose and say that he resides at
[_________________________________________]; that he is
[_______________________________] 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 [_____________] )
) ss.:
COUNTY OF [____________] ) [_____], 19[__]
On the ______ day of [______], in the year one thousand nine
hundred ninety-[_____], before me personally came [_____________] to me known,
who, being by me duly sworn, did depose and say that he resides at
________________________________________, that he is a Vice President of
[___________________________], 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
