EXHIBIT 4.4
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of November 6, 1996 (this "Agree ment"),
among SunAmerica Inc., a Maryland corporation (the "Company"), The First
National Bank of Chicago, a national banking association, not individually but
solely as collateral agent (in such capacity, together with its successors in
such capacity, the "Collateral Agent") and as "depositary" (as defined in 31
C.F.R ss.306, as amended) and as "securities intermediary" (as defined in
Section 8-102(a)(14) of the 1994 Official Text of the Uniform Commercial Code
and in 31 C.F.R. ss.357.2, as amended (in such capacity, together with its
successors in such capacity, the "Securities Intermediary")) for the collateral
account and for any Treasury Notes credited to the collateral account, and The
Bank of New York, not individually but solely as purchase contract agent and as
attorney-in-fact of the Holders (as hereinafter defined) from time to time of
the Securities (as hereinafter defined) (in such capacity, together with its
successors in such capacity, the "Pur chase Contract Agent") under the Purchase
Contract Agreement (as hereinafter defined).
RECITALS
The Company and the Purchase Contract Agent are parties to the Purchase
Contract Agreement, dated as of the date hereof (as modified and supplemented
and in effect from time to time, the "Purchase Contract Agreement"), pursuant to
which there will be issued 8.5% Premium Equity Redemption Cumulative Security
Units (the "Securities").
Each Security consists of (a) one Purchase Contract (as hereinafter
defined) and (b) 7.5% United States Treasury Notes due October 31, 1999
("Treasury Notes") having a principal amount equal to $37.50 (the "Stated
Amount") and maturing on October 31, 1999 (the "Final Settlement Date"), subject
to the pledge of such Treasury Notes created hereby.
The Company has caused the Underwriters, on its behalf, to purchase the
Treasury Notes, to be settled on November 6, 1996, with the proceeds of the
offering of the Securities and other funds to be provided by the Company. The
Company will convey such Treasury Notes to the Holders as a part of the Securi
ties.
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders (as defined in the Purchase Contract
Agreement) from time to time of the Securities have authorized the Purchase
Contract Agent, as attorney-in-fact of such Holders, among other things to
execute and deliver this Agreement on behalf of such Holders and to grant
the pledge provided hereby of the Treasury Notes constituting part of such
Securities as provided herein and subject to the terms hereof.
Accordingly, the Company, the Collateral Agent and the Purchase
Contract Agent, on its own behalf and as attorney-in-fact of the Holders from
time to time of the Securities, agree as follows:
SECTION 1. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and
(b) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Acceleration" has the meaning specified in the Purchase Contract
Agreement.
"Act" has the meaning specified in the Purchase Contract Agreement.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Treasury Regulations" means Subpart O- Book-Entry Procedure
of Title 31 of the Code of Federal Regulations (31 C.F.R. (S) 306.115 et. seq.)
and any other regulations of the United States Treasury Department from time to
time applicable to the transfer or pledge of book-entry U.S. Treasury
Securities, including, without limitation, the regulations set forth in 31 CFR
Part 357 which becomes effective January 1, 1997.
"Bankruptcy Code" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform system
of bankruptcy laws.
"Bankruptcy Event" has the meaning specified in the Purchase Contract
Agreement.
"Board Resolution" has the meaning specified in the Purchase Contract
Agreement.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which the New York Stock Exchange or banking institutions or trust companies
in The City of New York are authorized or obligated by law or executive order to
be closed.
"Collateral Agent" has the meaning specified in the first
paragraph of this instrument.
"Collateral Account" means the account maintained at The First National
Bank of Chicago in the name "The First National Bank of Chicago as Collateral
Agent of SunAmerica Inc. as pledgee of The Bank of New York as Purchase Contract
Agent".
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Final Settlement Date" has the meaning specified in the Recitals.
"Holder" when used with respect to a Security, or a Purchase Contract
constituting a part thereof, has the meaning specified in the Purchase Contract
Agreement.
"Holder's Early Settlement" has the meaning specified in the Purchase
Contract Agreement.
"Holder's Early Settlement Amount" has the meaning specified in the
Purchase Contract Agreement.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company and who shall be
reasonably acceptable to the Collateral Agent or the Purchase Contract Agent, as
the case may be.
"Outstanding Securities" has the meaning specified in the Purchase
Contract Agreement.
"Outstanding Security Certificates" has the meaning specified in the
Purchase Contract Agreement.
"Payment Date" has the meaning specified in the Purchase Contract
Agreement.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" has the meaning specified in Section 2 hereof.
"Pledged Treasury Notes" has the meaning specified in Section 2 hereof.
"Purchase Contract" has the meaning specified in the Purchase Contract
Agreement.
"Purchase Contract Agent" has the meaning specified in the first
paragraph of this instrument.
"Sale of Assets" has the meaning specified in the Purchase Contract
Agreement.
"Security" has the meaning specified in the Recitals.
"Security Certificate" has the meaning specified in the Purchase
Contract Agreement.
"Stated Amount" has the meaning specified in the Recitals.
"Treasury Notes" has the meaning specified in the Recitals.
"Underwriters" means the several Underwriters named in the Underwriting
Agreement dated October 31, 1996 between the Company and Xxxxxx Xxxxxxx & Co.
Incorporated, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Sachs
& Co. and Xxxxx Xxxxxx, Inc., as representatives of the several Underwriters
named herein.
SECTION 2. The Pledge.
The Holders from time to time of the Securities acting through the
Purchase Contract Agent, as their attorney-in-fact, hereby pledge and grant
to the Collateral Agent for the benefit of the Company, as collateral
security for the performance when due by such Holders of their respective
obligations under the Purchase Contracts comprising a portion of such
Securities, a security interest in all of the right, title and interest of
such Holders in the Treasury Notes credited to the Collateral Account.
Concurrently with the execution and delivery of the Securities (i) Xxxxxx
Xxxxxxx & Co., Incorporated shall cause the Treasury Notes to be credited
to an account of the Securities Intermediary at the Federal Reserve Bank of
Chicago by Federal Reserve Bank-Wire and (ii) the Securities Intermediary
shall credit the Treasury Notes to the Collateral Account, in each case
pursuant to Applicable Treasury Regulations and to the Uniform Commercial
Code to the extent such laws are applicable and pursuant to instructions
from the Purchase Contract Agent on behalf of the Holders. The pledge
provided in this Section 2 is herein referred to as the "Pledge" and the
Treasury Notes subject to the Pledge, excluding any Treasury Notes released
from the Pledge as provided in Section 4 hereof, are hereinafter referred
to as the "Pledged Treasury Notes." Subject to the Pledge, and to the
provisions of Article 4 of the Purchase Contract Agreement, the Holders
from time to time of the Securities shall have full beneficial ownership of
the Treasury Notes credited to the Collateral Account and all securities
entitlements (as defined in 31 C.F.R. ss.357.2 or any similar provision of
state law or Revised Article 8 (as defined in 31 C.F.R. ss.357)) in respect
thereof.
Notwithstanding any other provision of this Agreement, the Securities
Intermediary hereby agrees that (a) it will comply with "entitlement orders"
(within the meaning of Section 8-102(a)(8) of Revised Article 8) relating to the
Collateral Account issued by the Collateral Agent without further consent by the
Purchase Contract Agent or any Holder and (b) it hereby waives any right of
set-off or recoupment that it may have with respect to the Collateral Account.
The Securities Intermediary hereby represents that it has not entered into, and
hereby agrees that until the termination of the Purchase Contract Agreement it
will not enter into, any agreement with any of the parties hereto specifying any
jurisdiction other than the State of New York as its jurisdiction for purposes
of 31 C.F.R ss.357.11(b), as amended, and any similar state law, or with any
other person relating to the Collateral Account pursuant to which it has agreed
to comply with entitlement orders made by such person.
SECTION 3. Distribution of Principal and Interest.
(a) All payments of principal of, or interest on, any Treasury
Notes consti tuting part of the Securities received by the Collateral Agent
shall be paid by the Collateral Agent by wire transfer in same day funds no
later than 12:00 p.m., New York City time, on the Business Day such
interest payment is received by the Collateral Agent (provided that in the
event such interest payment is received by the Collateral Agent on a day
that is not a Business Day, then such payment shall be made no later than
10:00 a.m., New York City time, on the next succeeding Business Day) (i)
in the case of (A) interest payments and (B) any principal payments with
respect to any Treasury Notes that have been released from the Pledge
pursuant to Section 4 hereof, to the Purchase Contract Agent to the account
designated by it for such purpose and (ii) in the case of principal
payments on any Pledged Treasury Notes, the Collateral Agent is hereby
authorized to make such payments to the Company, in full satisfaction of
the respective obligations of the Holders of the Securities of which such
Pledged Treasury Notes are a part under the Purchase Contracts forming a
part of such Securities. All such payments received by the Purchase
Contract Agent as provided herein shall be applied by the Purchase Contract
Agent pursuant to the provisions of the Purchase Contract Agreement. If,
notwithstanding the foregoing, the Purchase Contract Agent shall receive
any payments of principal on account of any Pledged Treasury Notes, the
Purchase Contract Agent shall hold the same as trustee of an express trust
for the benefit of the Company (and promptly deliver over to the Company)
for applica tion to the obligations of the Holders of the Securities of
which such Treasury Notes are a part under the Purchase Contracts relating
to the Securities of which such Treasury Notes are a part, and such Holders
shall acquire no right, title or interest in any such payments of principal
so received.
SECTION 4. Release of Pledged Treasury Notes.
(a) Upon written notice to the Collateral Agent by the Company or the
Purchase Contract Agent that there has occurred a Bankruptcy Event or Sale of
Assets, resulting in the termination of the Purchase Contracts in accordance
with Section 5.09 of the Purchase Contract Agreement, the Collateral Agent shall
re lease all Pledged Treasury Notes from the Pledge and shall transfer all such
Xxxx xxxx Notes, free and clear of any lien, pledge or security interest created
hereby, to the Purchase Contract Agent.
If such Bankruptcy Event or Sale of Assets shall result from the
Company's becoming a debtor under the Bankruptcy Code, and if the Collateral
Agent shall for any reason fail immediately to effectuate the release and
transfer of all Pledged Treasury Notes as provided by this Section 4(a), the
Purchase Contract Agent shall, subject to Section 6(m), and provided, however,
that the Company shall have offered to the Purchase Contract Agent such
reasonable indemnity as it may require against the costs, liabilities and
expenses to be incurred herein (i) use its best efforts to obtain an opinion of
a nationally recognized law firm reasonably acceptable to the Collateral Agent
to the effect that, as a result of the Company's being the debtor in such a
bankruptcy case, the Collateral Agent will not be prohibited from releasing or
transferring the Treasury Notes as provided in this Section 4(a), and shall
deliver such opinion to the Collateral Agent within ten days after the
occurrence of such Bankruptcy Event or Sale of Assets, and if (y) the Purchase
Contract Agent shall be unable to obtain such opinion within ten days after the
occurrence of such Bankruptcy Event or Sale of Assets or (z) the Collateral
Agent shall continue, after delivery of such opinion, to refuse to effectuate
the release and transfer of all Pledged Treasury Notes as provided in this
Section 4(a), then the Purchase Contract Agent shall within fifteen days after
the occurrence of such Bankruptcy Event or Sale of Assets commence an action or
proceeding in the court with jurisdiction of the Company's case under the
Bankruptcy Code seeking an order requiring the Collateral Agent to effectuate
the release and transfer of all Pledged Treasury Notes as provided by this
Section 4(a) or (ii) commence an action or proceeding like that described in the
immediately preceding subsection hereof within ten days after the occurrence of
such Bankruptcy Event or Sale of Assets.
(b) Upon written notice to the Collateral Agent and the Company by the
Purchase Contract Agent that one or more Holders of Securities have elected to
effect Holder's Early Settlement of their respective obligations under the
Purchase Contracts forming a part of such Securities in accordance with the
terms of the Purchase Contracts and the Purchase Contract Agreement (setting
forth the number of such Purchase Contracts as to which such Holders have
elected to ef fect Holder's Early Settlement), and that the Purchase Contract
Agent has received from such Holders, and paid to the Company, the related
Holder's Early Settle ment Amounts pursuant to the terms of the Purchase
Contracts and the Purchase Contract Agreement and that all conditions to such
Holder's Early Settlement have been satisfied, then the Company shall direct the
Collateral Agent to release from the Pledge and transfer all such Treasury
Notes, free and clear of any lien, pledge or security interest created hereby,
to the Purchase Contract Agent with a principal amount equal to the product of
(i) the Stated Amount times (ii) the number of such Purchase Contracts as to
which such Holders have elected to effect Holder's Early Settlement.
(c) Upon written notice to the Collateral Agent by the Company of an
Acceleration in accordance with the terms of the Purchase Contracts and the
Purchase Contract Agreement (setting forth the number of Securities to be
accelerated), and that all conditions to such Acceleration have been satisfied,
then the Collateral Agent shall release from the Pledge and shall transfer all
such Treasury Notes, free and clear of any lien, pledge or security interest
created hereby, to the Purchase Contract Agent with a principal amount equal to
the product of (i) the Stated Amount times (ii) the number of Securities to be
accelerated.
(d) Transfers of Treasury Notes pursuant to Section 4(a), (b) or (c)
shall be by Federal Reserve Bank-Wire or in another appropriate manner, (i) if
the Collateral Agent shall have received such notification at or prior to 11:00
a.m., New York City time, on a Business Day, then no later than 2:00 p.m., New
York City time, on such Business Day and (ii) if the Collateral Agent shall have
received such notification on a day that is not a Business Day or after 11:00
a.m., New York City time, on a Business Day, then no later than 10:00 a.m., New
York City time, on the next succeeding Business Day.
SECTION 5. Rights and Remedies.
(a) The Collateral Agent shall have all of the rights and remedies with
respect to the Pledged Treasury Notes of a secured party under the Uniform
Commercial Code as in effect in the State of New York (the "Code") (whether or
not the Code is in effect in the jurisdiction where the rights and remedies are
asserted) and such additional rights and remedies to which a secured party is
entitled under the laws in effect in any jurisdiction where any rights and
remedies hereunder may be asserted.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of principal payments of any Pledged
Treasury Notes as provided in Section 3 hereof in satisfaction of the
obligations of the Holder of the Securities of which such Pledged Treasury Notes
are a part under the Purchase Contracts forming a part of such Securities, the
Collateral Agent shall have and may exercise, with reference to such Pledged
Treasury Notes and such obligations of such Holder, any and all of the rights
and remedies available to a secured party under the Code after default by a
debtor, and as otherwise granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of principal of or interest on
the Pledged Treasury Notes.
(d) The Purchase Contract Agent agrees that, from time to time, upon
the written request of the Collateral Agent, the Purchase Contract Agent shall
execute and deliver such further documents and do such other acts and things as
the Collateral Agent may reasonably request in order to maintain the Pledge, and
the perfection and priority thereof, and to confirm the rights of the Collateral
Agent hereunder; provided that, except as expressly set forth herein or in
accordance with this subsection (d), the Purchase Contract Agent shall have no
obligation or liability with respect to the maintenance or perfection of the
Pledge.
SECTION 6. The Collateral Agent and the Purchase Contract Agent.
It is hereby agreed as follows:
(a) Appointment, Powers and Immunities. The Collateral Agent
shall act as agent for the Company hereunder with such powers as are
specifically vested in the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. The
Collateral Agent: (i) shall have no duties or responsibilities except
those expressly set forth in this Agreement and no implied covenants or
obligations shall be inferred from this Agreement against the Collateral
Agent, nor shall the Collateral Agent be bound by the provisions of any
agreement by any party hereto beyond the specific terms hereof; (ii) shall
not be re sponsible for any recitals contained in this Agreement, or in any
certificate or other document referred to or provided for in, or received
by it under, this Agreement, the Securities or the Purchase Contract
Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement (other than as against the
Collateral Agent), the Securities or the Purchase Contract Agreement or any
other document referred to or provided for herein or therein or for any
failure by the Company or any other Person (except the Collateral Agent) to
perform any of its obligations hereunder or thereunder; (iii) shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder (except pursuant to directions furnished under Section 6(b)
hereof); (iv) shall not be responsible for any action taken or omitted to
be taken by it hereunder or under any other document or instrument referred
to or provided for herein or in connection herewith or therewith, except
for its own gross negligence; and (v) shall not be required to advise any
party as to selling or retaining, or taking or refraining from taking any
action with respect to, any securities or other property deposited
hereunder. Subject to the foregoing, during the term of this Agreement,
the Collateral Agent shall take all reasonable action in connection with
the safe keeping and preservation of the Pledged Treasury Notes hereunder.
No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
perfor xxxxx of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the value of the Pledged Treasury
Notes.
(b) Instructions of the Company. The Company shall have the right, by
one or more instruments in writing executed and delivered to the Collateral
Agent, to direct the time, method and place of conducting any proceeding for any
right or remedy available to the Collateral Agent, or of exercising any power
conferred on the Collateral Agent, or to direct the taking or refraining from
taking of any action authorized by this Agreement; provided, however, that (i)
such direction shall not conflict with the provisions of any law or of this
Agreement and (ii) the Collateral Agent shall be adequately indemnified as
provided herein. Nothing in this Section 6(b) shall impair the right of the
Collateral Agent in its discretion to take any action or omit to take any action
which it deems proper and which is not inconsis tent with such direction.
(c) Reliance by Collateral Agent. The Collateral Agent shall be
entitled to rely upon any certification, order, judgment, opinion, notice
or other communication (including, without limitation, any thereof by
telephone, telecopy, telex, telegram or cable) reasonably believed by it to
be genuine and correct and to have been signed or sent by or on behalf of
the proper Person or Persons (without being required to determine the
correctness of any fact stated therein), and upon advice and statements of
legal counsel and other experts selected by the Collateral Agent. As to
any matters not expressly provided for by this Agreement, the Collateral
Agent shall in all cases be fully protected in acting, or in refraining
from acting, hereunder in accordance with instructions given by the Company
in accordance with this Agreement.
(d) Rights in Other Capacities. The Collateral Agent and its
affiliates may (without having to account therefor to the Company) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Purchase Contract Agent and
any Holder of Securities (and any of their subsidiaries or affiliates) as if it
were not acting as the Collateral Agent, and the Collateral Agent and its
affiliates may accept fees and other consideration from the Purchase Contract
Agent and any Holder of Securities without having to account for the same to the
Company, provided that the Collateral Agent covenants and agrees with the
Company that the Collateral Agent shall not accept, receive or permit there to
be created in its favor any security interest, lien or other encumbrance of any
kind in or upon the Pledged Treasury Notes.
(e) Non-Reliance on Collateral Agent. The Collateral Agent shall not
be required to keep itself informed as to the performance or observance by the
Purchase Contract Agent or any Holder of Securities of this Agreement, the
Purchase Contract Agreement, the Securities or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. The Collateral Agent shall
not have any duty or responsibility to provide the Company with any credit or
other information concerning the affairs, financial condition or business of the
Purchase Contract Agent or any Holder of Securities (or any of their affiliates)
that may come into the possession of the Collateral Agent or any of its
affiliates.
(f) Compensation and Indemnity by Company. The Company agrees: (i) to
pay the Collateral Agent from time to time reasonable compensation for all
services rendered by it hereunder and (ii) to indemnify the Collateral Agent and
the Purchase Contract Agent for, and to hold them harmless against, any loss,
liability or expense incurred without gross negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration of
their powers and duties under this Agreement, including the costs and expenses
(including reasonable fees and expenses of counsel) of defending themselves
against any claim or liability in connection with the exercise or performance of
such powers and duties.
(g) Compensation and Indemnity by Holders. The Holders agree (i) to
indemnify the Purchase Contract Agent for, and to hold it harmless against, any
loss, liability or expense incurred without gross negligence or bad faith on its
part, arising out of or in connection with the institution of suit on behalf of
the Holders pursuant to Section 4(a) above and (ii) to compensate the Purchase
Contract Agent for the reasonable costs and expenses (including reasonable fees
and expenses of counsel) incurred by it in instituting such suit.
(h) Failure to Act. In the event of any ambiguity in the provisions of
this Agreement or any dispute between or conflicting claims by or among the
parties hereto and/or any other Person with respect to any funds or property
deposited hereunder, the Collateral Agent shall be entitled, at its sole option,
to refuse to comply with any and all claims, demands or instructions with
respect to such property or funds so long as such dispute or conflict shall
continue, and the Collateral Agent shall not be or become liable in any way to
any of the parties hereto for its failure or refusal to comply with such
conflicting claims, demands or instructions. The Collateral Agent shall be
entitled to refuse to act until either (i) such conflicting or adverse claims or
demands shall have been finally determined by a court of competent jurisdiction
or settled by agreement between the conflicting parties as evidenced in a
writing, satisfactory to the Collateral Agent or (ii) the Collateral Agent shall
have received security or an indemnity satisfactory to the Collateral Agent
sufficient to save the Collateral Agent harmless from and against any and all
loss, liability or expense which the Collateral Agent may incur by reason of its
acting. The Collateral Agent may in addition elect to commence an interpleader
action or seek other judicial relief or orders as the Collateral Agent may deem
necessary. Notwithstanding anything contained herein to the contrary, the
Collateral Agent shall not be required to take any action that is in its opinion
contrary to law or to the terms of this Agreement, or which would in its opinion
subject it or any of its officers, employees or directors to liability.
(i) Resignation of Collateral Agent. Subject to the appointment
and acceptance of a successor Collateral Agent as provided below, (a) the
Collateral Agent may resign at any time by giving notice thereof to the
Company and the Purchase Contract Agent, (b) the Collateral Agent may be
removed at any time by the Company and (c) if the Collateral Agent fails to
perform any of its material obligations hereunder in any material respect
for a period of not less than 20 days after receiving written notice of
such failure by the Purchase Contract Agent and such failure shall be
continuing, the Collateral Agent may be removed by the Purchase Contract
Agent at the written direction of 25% in aggregate principal amount of
Holders of the Securities. The Purchase Contract Agent shall promptly
notify the Company of any removal of the Collateral Agent pursuant to
clause (c) of the immediately preceding sentence. Upon any such
resignation or removal, the Company shall have the right to appoint a
successor Collateral Agent. If no successor Collateral Agent shall have
been so appointed and shall have accepted such appointment within 30 days
after the retiring Collateral Agent's giving of notice of resignation or
such removal, then the retiring Collateral Agent may at the expense of the
Company petition any court of competent jurisdiction for the appointment of
a successor Collateral Agent. The Collateral Agent shall be a bank which
has an office in New York, New York and a combined capital and surplus of
at least $50,000,000. Upon the acceptance of any appointment as Collateral
Agent hereunder by a successor Collateral Agent, such successor Collateral
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Collateral Agent, and the
retiring Collateral Agent shall take all appropriate action to transfer any
money and property held by it hereunder (including the Pledged Treasury
Notes) to such successor Collateral Agent. The retiring Collateral Agent
shall, upon such succession, be discharged from its duties and obligations
as Collateral Agent hereunder. After any retiring Collateral Agent's
resignation hereunder as Collateral Agent, the provisions of this Section 6
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Collateral Agent.
Promptly following the removal or resignation of the Collateral
Agent the Company shall give written notice thereof to Xxxxx'x Investors
Services, Inc.
(j) Right to Appoint Agent or Advisor. The Collateral Agent
shall have the right to appoint agents or advisors in connection with any
of its duties hereunder, and the Collateral Agent shall not be liable for
any action taken or omitted by such agents or advisors selected in good
faith.
(k) Survival. The provisions of this Section 6 shall survive
termination of this Agreement and the resignation or removal of the
Collateral Agent.
(l) Anything in this Agreement to the contrary notwithstanding,
in no event shall the Collateral Agent or its officers, employees or agents
be liable under this Agreement to any third party for indirect, special,
punitive, or consequential loss or damage of any kind whatsoever, including
lost profits, whether or not the likelihood of such loss or damage was
known to the Collateral Agent, or any of its officers, employees or agents,
incurred without any act or deed that is found to be attributable to gross
negligence on the part of the Collateral Agent, its officers, employees or
agents.
(m) The Purchase Contract Agent. The duties and
responsibilities of the Purchase Contract Agent under this Agreement shall
in each case be governed by
Article VII of the Purchase Contract Agreement.
SECTION 7. Amendment.
(a) Amendment Without Consent of Holders. Without the consent
of any Holders, the Company, the Collateral Agent and the Purchase Contract
Agent, at any time and from time to time, may amend this Agreement, in form
satisfactory to the Company, the Collateral Agent and the Purchase Contract
Agent, for any of the following purposes:
(i) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the
Company; or
(ii) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon
the Company; or
(iii) to evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent or Purchase Contract
Agent; or
(iv) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other such
provisions herein, or to make any other provisions with respect to
such matters or questions arising under this Agreement, provided
such action shall not adversely affect the interests of the
Holders.
(b) Amendment with Consent of Holders. With the consent of the
Holders of not less than 66 2/3% of the Outstanding Securities, by Act of
said Holders delivered to the Company, the Purchase Contract Agent and the
Collateral Agent, the Company when authorized by a Board Resolution, the
Purchase Contract Agent and the Collateral Agent may amend this Agreement
for the purpose of modifying in any manner the provisions of this Agreement
or the rights of the Holders in respect of the Securities; provided,
however, that no such sup plemental agreement shall, without the consent of
the Holder of each Outstanding Security affected thereby,
(i) change the amount or type of Treasury Notes underlying a
Security, impair the right of the Holder of any Security to
receive interest payments on the underlying Treasury Notes or
otherwise adversely affect the Holder's rights in or to such
Treasury Notes; or
(ii) change any Payment Date;
(iii) impair the right to institute suit for the enforcement of any
Purchase Contract.
(iv) otherwise effect any action that would require the consent of
the Holder of each Outstanding Security affected thereby pursuant
to the Purchase Contract Agreement if such action were effected by
an agreement supplemental thereto; or
(v) reduce the percentage of Outstanding Securities the consent
of whose Holders is required for any such amendment.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed amendment, but it
shall be sufficient if
such Act shall approve the substance thereof.
(c) Execution of Amendments. In executing any amendment
permitted by this Section, the Collateral Agent and the Purchase Contract
Agent shall be entitled to receive and (subject to Section 6(a) hereof,
with respect to the Collateral Agent, and Section 7.01 of the Purchase
Contract Agreement, with respect to the Purchase Contract Agent) shall be
fully protected in relying upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement
and that all conditions precedent to such execution and delivery have been
satisfied.
(d) Effect of Amendments. Upon the execution of any amendment
under this Section, this Agreement shall be modified in accordance
therewith, and such amendment shall form a part of this Agreement for all
purposes; and every Holder of Security Certificates theretofore or
thereafter authenticated, executed on behalf of the Holders and delivered
under the Purchase Contract Agreement shall be bound thereby.
(e) Reference to Amendments. Security Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any amendment pursuant to this Section may, and shall if
required by the Collateral Agent or the Purchase Contract Agent, bear a
notation in a form approved by the Purchase Contract Agent and the
Collateral Agent as to any matter provided for in such amendment. If the
Company shall so determine, new Security Certificates so modified as to
conform, in the opinion of the Collateral Agent, the Purchase Contract
Agent and the Company, to any such amendment may be prepared and executed
by the Company and authenticated, executed on behalf of the Holders and
delivered by the Purchase Contract Agent in accordance with the Purchase
Contract Agreement in exchange for Outstanding Security Certificates.
SECTION 8. Miscellaneous.
(a) No Waiver. No failure on the part of the Collateral Agent
or any of its agents to exercise, and no course of dealing with respect to,
and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise by
the Collateral Agent or any of its agents of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. The remedies herein are cumulative and
are not exclusive of any remedies provided by law.
(b) Governing Law. THIS AGREEMENT, THE COLLATERAL ACCOUNT, AND
PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION AND THE PRIORITY
OF THE SECURITY INTEREST IN THE TREASURY NOTES OR ANY SECURITY ENTITLEMENT
WITH RESPECT THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AND THE SECURITIES INTERMEDIARY'S
JURISDICTION WILL BE THE STATE OF NEW YORK FOR PURPOSES OF 31 C.F.R.
ss.357.11(b), AS AMENDED, AND ANY SIMILAR STATE LAW. The Company, the
Collateral Agent and the Holders from time to time of the Securities,
acting through the Purchase Contract Agent as their attorney-in-fact,
hereby submit to the
nonexclusive jurisdiction of the United States District Court for the
Southern Dis trict of New York and of any New York state court sitting in
New York City for the purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. The
Company, the Collateral Agent and the Holders from time to time of the
Securities, acting through the Purchase Contract Agent as their attorney-
in-fact, irrevocably waive, to the fullest extent permitted by applicable
law, any objection which they may now or hereafter have to the laying of
the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an
inconvenient forum.
(c) Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be
given or made in writing (including, without limitation, by telecopy)
delivered to the intended recipient at the "Address for Notices" specified
below its name on the signature pages hereof or, as to any party, at such
other address as shall be designated by such party in a notice to the other
parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
(d) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of
the Company, the Collateral Agent and the Purchase Contract Agent, and the
Holders from time to time of the Securities, by their acceptance of the
same, shall be deemed to have agreed to be bound by the provisions hereof
and to have ratified the agreements of, and the grant of the Pledge
hereunder by, the Purchase Contract Agent.
(e) Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the
same instrument, and any of the parties hereto may execute this Agreement
by signing any such counterpart.
(f) Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (i) the other provisions hereof shall remain in full force and effect
in such jurisdiction and shall be liberally construed in order to carry out
the intentions of the parties hereto as nearly as may be possible and (ii)
the invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction.
(g) Expenses, etc. The Company agrees to reimburse the
Collateral Agent for: (a) all reasonable out-of-pocket costs and expenses
of the Collateral Agent (including, without limitation, the reasonable fees
and expenses of counsel to the Collateral Agent), in connection with (i)
the negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the
terms of this Agreement; (b) all reasonable costs and expenses of the
Collateral Agent (including, without limitation, reasonable fees and
expenses of counsel) in connection with (i) any enforcement or proceedings
resulting or incurred in connection with causing any Holder of Securi ties
to satisfy its obligations under the Purchase Contracts forming a part of
the Securities and (ii) the enforcement of this Section 8(g); and (c) all
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this
Agreement or any other document referred to herein and all costs, expenses,
taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest
contemplated hereby.
(h) Security Interest Absolute. All rights of the Collateral
Agent and security interests hereunder, and all obligations of the Holders
from time to time of the Securities hereunder, shall be absolute and
unconditional irrespective of:
(i) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Securities or any other agreement or
instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or any
other term of, or any increase in the amount of, all or any of the
obligations of Holders of Securities under the related Purchase
Contracts, or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Purchase
Contract Agreement or any Purchase Contract or any other agreement
or instrument relating thereto; or
(iii) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or
a pledgor.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year
first above written.
SunAmerica Inc.
By:
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
Address for Notices:
SunAmerica Inc.
0 XxxXxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Treasurer
Telecopy: (000) 000-0000
The Bank of New York as Purchase
Contract Agent and as
attorney-in-fact of the Holders from
time to time of the Securities
By:
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
Address for Notices:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust
Administration Trustee
Telecopy: (000) 000-0000
The First National Bank of Chicago
as Collateral Agent and Securities
Intermediary with respect to
the Collateral Account and as
Securities Intermediary with
respect to any Treasury Notes
credited to the Collateral
Account
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address for Notices:
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust
Administration
Telecopy: (000) 000-0000
