EXHIBIT 1.1
SUNAMERICA INC.
Medium-Term Notes, Series 2 Due
Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
October 19, 1995
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
CHASE SECURITIES, INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
PAINEWEBBER INCORPORATED
c/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Dear Sirs:
SunAmerica Inc., a Maryland corporation (the "Company"),
confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated, Chase Securities, Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇.▇.
▇▇▇▇▇▇ Securities Inc. and PaineWebber Incorporated (each, an "Agent" and
collectively, the "Agents") with respect to the issue and sale by the Company
of its Medium-Term Notes, Series 2 described herein (the "Notes"). The Notes
are to be issued pursuant to the Senior Indenture (the "Indenture") dated as
of April 15, 1993, as supplemented by the Supplemental Indenture (the
"Supplemental Indenture") dated as of June 28, 1993, between the Company and
The First National Bank of Chicago, as trustee (the "Trustee"). As of the
date hereof, the Company has authorized the issuance and sale of up to U.S.
$300,000,000 aggregate initial offering price (or its equivalent, based upon
the applicable exchange rate at the time of issuance, in such foreign or
composite currencies as the Company shall designate at the time of issuance) of
Notes pursuant to the terms of this Agreement. It is understood, however,
that the Company may from time to time authorize the issuance of additional
Notes and that such additional Notes may be sold pursuant to the terms of this
Agreement, all as though the issuance of such Notes were authorized as of the
date hereof.
The Company and certain related entities have filed with the
Securities and Exchange Commission (the "SEC") a registration statement on
Form S-3 (No. 33-62405 and ▇▇-▇▇▇▇▇-▇▇, 02 and 03) for the registration of debt
securities, including the Notes, under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accordance
with Rule 415 of the rules and regulations of the SEC under the 1933 Act (the
"1933 Act Regulations"). Such registration statement has been declared
effective by the SEC and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit)
and the prospectus constituting a part thereof (in the case of the registration
statement previously filed, excluding the prospectus relating to junior
subordinated debt securities of the Company and preferred securities of
SunAmerica Capital Trust II, III and IV), supplemented by any prospectus
supplements relating to the Notes, including all documents incorporated therein
by reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that if
any revised prospectus shall be provided to the Agents by the Company for use
in connection with the offering of the Notes which is not required to be filed
by the Company pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Agents for such use.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions
stated herein, including Section 16 and the next sentence of this paragraph
(a), the Company hereby agrees that the Agents will be its agents for the
purpose of soliciting and receiving offers to purchase Notes from the Company.
Notwithstanding any provision of this Agreement to the contrary, the Company
shall have the right to sell Notes directly on its own behalf, and may in its
discretion solicit and accept offers to purchase and accept unsolicited offers
to purchase Notes directly on its own behalf or from any broker or dealer not
a party to this Agreement (whether acting as principal or as agent); provided,
that any agent engaged by the Company in connection with a specific purchase
of Notes shall be engaged on terms substantially similar (including the same
commission schedule) to the applicable terms of this Agreement. Each Agent
acknowledges that, in the case of any sale of Notes by the Company not
resulting from a solicitation made or an offer to purchase received by such
Agent, or arising in connection with a purchase by such Agent as principal, no
commission shall be payable by the Company to such Agent with respect to such
sale.
(b) Sale of Notes. The Company shall not sell or
approve the solicitation of purchases of Notes in excess of the amount which
shall be authorized by the Company from time to time or in excess of the
principal amount of Notes registered pursuant to the Registration Statement.
The Agents will have no responsibility for maintaining records with respect to
the aggregate principal amount of Notes sold, or of otherwise monitoring the
availability of Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have
any obligation to purchase Notes from the Company as principal, but one or
more Agents may agree from time to time to purchase Notes as principal. The
Agents are authorized to engage the services of any other broker or dealer in
connection with the offer or sale of the Notes purchased by one or more of the
Agents as principal for resale to others but are not authorized to appoint
sub-agents. Any purchase of Notes by one or more Agents as principal shall
be made in accordance with Section 3(a) hereof.
(d) Solicitations as Agent. Each Agent will
communicate to the Company, orally or in writing, each offer to purchase Notes
solicited by such Agent on an agency basis, other than those offers rejected
by such Agent. The Agents shall have the right, in their discretion reasonably
exercised, to reject any proposed purchase of Notes, as a whole or in part,
and any such rejection shall not be deemed a breach of the Agents' agreement
contained herein. The Company shall have the sole right to accept offers to
purchase Notes and may reject any proposed purchase of the Notes, in whole or
in part. The Agents shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by the Agents and accepted by the Company. The Agents shall not
have any liability to the Company in the event any such agency purchase is not
consummated for any reason. If the Company shall default on its obligation to
deliver Notes to a purchaser whose offer it has accepted, the Company shall
(i) hold the Agents harmless against any loss, claim or damage arising from or
as a result of such default by the Company and (ii) notwithstanding such
default, pay to each Agent any commission to which it would be entitled in
connection with such sale.
(e) Reliance. The Company and the Agents agree that
any Notes purchased by an Agent shall be purchased, and any Notes the
placement of which an Agent arranges shall be placed by the Agent, in reliance
on the representations, warranties, covenants and agreements of the Company
contained herein and on the terms and conditions and in the manner provided
herein.
SECTION 2. Representations and Warranties.
The Company represents and warrants to the Agents as of the
date hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (whether from an Agent as principal or through an Agent
as agent), as of the date of each delivery of Notes (whether to an Agent as
principal or through an Agent as agent) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (each of the times referenced above being
referred to herein as a "Representation Date") as follows:
(a) At the time the Registration Statement became
effective, the Registration Statement complied, and as of the applicable
Representation Date will comply, in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and
the rules and regulations of the SEC promulgated thereunder. The Registration
Statement, at the time it became effective, did not, and at each time
thereafter at which any amendment to the Registration Statement becomes
effective, will not, include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, as of the date hereof does
not, and as of each Representation Date will not, contain an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any Agent
expressly for use in the Registration Statement or Prospectus or to that part
of the Registration Statement that constitutes the Statement of Eligibility
and Qualification (Form T-1) under the 1939 Act of the Trustee.
(b) The documents incorporated by reference in the
Prospectus at the time they were or hereafter are filed with the SEC, complied
or when so filed will comply, as the case may be, in all material respects
with the requirements of the 1934 Act and the rules and regulations
promulgated thereunder (the "1934 Act Regulations").
(c) The financial statements and supporting
schedules of the Company included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries as of the dates
indicated and the results of their operations for the periods specified;
except as otherwise stated in the Registration Statement or the Prospectus,
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis.
(d) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, and
except as otherwise stated or contemplated therein, (A) there has been no
material adverse change and no development involving a prospective material
adverse change in the condition, financial or otherwise, or in the earnings or
business affairs of the Company and SunAmerica Life Insurance Company, First
SunAmerica Life Insurance Company, Anchor National Life Insurance Company,
SunAmerica Asset Management Corp., Resources Trust Company, Royal Alliance
Associates, Inc. and SunAmerica Securities, Inc. (together, the
"Subsidiaries") and the Company's other subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, and (B) there has
been no transaction or agreement entered into by the Company or any of the
Subsidiaries which is material to the Company and its subsidiaries, taken as a
whole, other than those entered into in the ordinary course of business.
(e) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Maryland, with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus; and the
Company is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is required,
except where the failure to so qualify or be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings or business affairs of the Company and its subsidiaries, taken as a
whole.
(f) Each of the Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus, and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so qualify
or be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries, taken as a whole; all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and
validly issued and is fully paid and nonassessable, and all of such issued and
outstanding capital stock that is owned directly or through subsidiaries by
the Company is owned free and clear of any mortgage, pledge, lien or other
encumbrance (except for Permitted Liens (as defined in the Indenture) or as
otherwise permitted by the Indenture).
(g) The Company and the Subsidiaries possess such
certificates, authorizations or permits issued by the appropriate state or
federal regulatory agencies or bodies as are necessary to conduct the business
as now conducted by them and as described in the Prospectus, except where the
failure to so possess such certificates, authorizations or permits would not
have a material adverse effect on the condition, financial or otherwise, or
the earnings or business affairs of the Company and its subsidiaries, taken as
a whole; and neither the Company nor any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, is
reasonably likely to have a material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of the Company and
its subsidiaries, taken as a whole.
(h) This Agreement has been duly authorized,
executed and delivered by the Company.
(i) The Indenture has been duly qualified under the
1939 Act and has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable in accordance
with its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally
and (ii) rights of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability.
(j) The Notes have been duly authorized for
issuance, offer and sale pursuant to this Agreement, and, when issued,
authenticated and delivered pursuant to the provisions of this Agreement and
the Indenture against payment of the consideration therefor specified in the
Prospectus or agreed upon pursuant to the provisions of this Agreement, the
Notes will constitute valid and binding obligations of the Company,
enforceable in accordance with their terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability; the Notes will conform in all material respects to all
statements relating thereto contained in the Prospectus and will be entitled
to the benefits of the Indenture.
(k) Neither the Company nor any of the Subsidiaries
is in violation of its charter or bylaws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its Subsidiaries is a
party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of the Subsidiaries is subject, or in
violation of any applicable law, administrative regulation or administrative
or court order or decree, which violation or default would, singly or in the
aggregate, have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Company and its
subsidiaries, taken as a whole; the execution and delivery by the Company of,
and the performance by the Company of its obligations under, this Agreement,
the Indenture and the Notes will not contravene any provision of applicable
law or the articles of incorporation or by-laws of the Company, nor will it
conflict with or constitute a breach of, or a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Subsidiaries pursuant to, any agreement or
other instrument binding upon the Company or any Subsidiary that is material
to the Company and its subsidiaries, taken as a whole, or any judgment, order
or decree of any governmental body, agency or court having jurisdiction over
the Company or any Subsidiary, except for a conflict, breach, default, lien,
charge or encumbrance which would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries, taken as a whole, and no consent, approval,
authorization or order of or qualification with any governmental body or
agency is required for the performance by the Company of its obligations under
this Agreement, the Indenture and the Notes, except such as may be required by
the 1933 Act, the 1933 Act Regulations, the securities or Blue Sky or
insurance securities laws of the various states in connection with the offer
and sale of the Notes or such as have been obtained.
(l) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of its
subsidiaries is subject that are required by the 1933 Act, the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations to be described in the
Registration Statement or the Prospectus and are not so described; there are
no contracts or other documents that are required by the 1933 Act, the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations to be filed as exhibits
to the Registration Statement or to any documents incorporated by reference
therein that are not filed as so required; and all pending legal or
governmental proceedings to which the Company or any of its subsidiaries is a
party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement or the Prospectus,
including ordinary routine litigation incidental to the business of the Company
or any of its subsidiaries, are, considered in the aggregate, not material to
the Company and its subsidiaries, taken as a whole.
(m) The Company has complied with all the provisions
of Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(n) As of the date of this Agreement, the Company's
medium-term note program has been rated Baa1 by ▇▇▇▇▇'▇ Investors Service,
Inc. and A by Standard & Poor's Ratings Group. As of the date of any
acceptance by the Company of any offer to purchase Notes and on each
Settlement Date, as the case may be, the Company's medium-term note program
has been rated by ▇▇▇▇▇'▇ Investors Service and Standard & Poor's Ratings
Group.
Any certificate signed by any director or officer of the
Company and delivered to an Agent or to counsel for the Agents in connection
with a sale of Notes through an Agent as agent or the sale of Notes to an
Agent as principal shall be deemed a representation and warranty by the Company
to such Agent or Agents as to the matters covered thereby on the date of such
certificate.
SECTION 3. Purchases as Principal; Solicitations as Agents.
(a) Purchases as Principal. Each sale of Notes to
an Agent as principal shall be made in accordance with terms agreed upon by
one or more Agents and the Company (which terms shall be agreed upon either
(i) in writing or (ii) orally, with written confirmation prepared by the Agent
or Agents making such purchase and promptly delivered to the Company). An
Agent's commitment to purchase Notes as principal shall be deemed to have been
made on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each such purchase of Notes by any Agent shall be made by such Agent with the
intention of reselling them as soon as practicable, in the sole judgment of
such Agent. Each such purchase of Notes, unless otherwise agreed, shall be at
a discount equivalent to the applicable commission set forth in Schedule A
hereto. The Agents may engage the services of any other broker or dealer in
connection with the resale of Notes purchased as principal and may allow any
portion of the discount received in connection with such purchases from the
Company to such brokers and dealers. The Company shall be advised by one or
more Agents when a purchase of Notes is to be made by such Agents as principal
and at the time of agreement as to the terms of any such purchase, the Agent
or Agents making such purchase shall specify any requirements for the
stand-off agreement, officer's certificate, opinion of counsel and comfort
letter pursuant to Sections 4(l), 7(b), 7(c) and 7(d) hereof, respectively.
(b) Solicitations as Agents. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions set forth herein and in the Prospectus, when agreed by the Company
and one or more Agents, each such Agent, as an agent of the Company, will use
its reasonable efforts to solicit offers to purchase the Notes upon terms
acceptable to the Company at such times and in such amounts as the Company
shall from time to time specify. All Notes sold through one or more Agents as
agents will be sold at 100% of their principal amount unless otherwise agreed
to by the Company and such Agent or Agents.
The Company reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through the Agents, as agents,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, the Agents will forthwith suspend solicitation
of purchases from the Company until such time as the Company has advised the
Agents that such solicitation may be resumed. While such solicitation is
suspended, the Company shall not be required to deliver any certificates,
opinions or letters pursuant to Section 7 hereof; provided, however, that if
the Company shall thereafter advise the Agents that such solicitation may be
resumed, the Company shall deliver or cause to be delivered to each Agent any
certificate, opinion or letter that is requested by such Agent and that would
have been required during the period of suspension were it not for this
paragraph, except that if, during the period of suspension, the Company shall
have filed an Annual Report on Form 10-K, no Agent shall be entitled to
receive any such certificate, opinion or letter relating to amendments or
supplements to the Registration Statement or the Prospectus made by means of
any filing by the Company pursuant to the 1934 Act prior to the date of filing
of such Annual Report on Form 10-K; and provided, further, that if, at the
time such solicitation is suspended, any Agent owns Notes purchased by it as
principal pursuant to this Agreement, the Company shall be required to
continue to deliver such certificates, opinions and letters to such Agent
during the period of suspension until the earlier of (i) such time as such
Agent no longer owns any of such Notes or (ii) 180 days from the last date on
which any of such Notes were purchased from the Company by such Agent (except
that the Company shall, at the request of such Agent, deliver such
certificates, opinions and letters after the date specified in clause (ii),
but not after the date specified in clause (i), if such Agent, notwithstanding
the provisions of Section 10, pays all expenses incident to the preparation
and delivery of the certificates, opinions and letters that the Company is
required to deliver solely as a consequence of this parenthetical).
The Company agrees to pay each Agent a commission, in the
form of a discount, equal to the applicable percentage of the principal amount
of each Note sold by the Company as a result of a solicitation made by such
Agent as set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price,
interest rate or formula, maturity date and other terms of the Notes (as
applicable) specified in Exhibit A hereto shall be agreed upon by the Company
and one or more Agents and set forth in a pricing supplement to the Prospectus
to be prepared in connection with each sale of Notes. Except as may be
otherwise provided in such supplement to the Prospectus, the Notes will be
issued in denominations of U.S $1,000 or any larger amount that is an integral
multiple of U.S $1,000. Administrative procedures with respect to the sale of
Notes shall be agreed upon from time to time by the Agents, the Company and
the Trustee (the "Procedures"). The Agents and the Company agree to perform
the respective duties and obligations specifically provided to be performed
by them in the Procedures set forth in Exhibit B hereto.
SECTION 4. Covenants of the Company.
The Company covenants with each Agent as follows:
(a) The Company will notify the Agents immediately
(i) of the effectiveness of any amendment to the Registration Statement, (ii)
of the transmittal to the SEC for filing of any supplement to the Prospectus
or any document to be filed pursuant to the 1934 Act which will be
incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the SEC with respect to the Registration Statement or the
Prospectus, (iv) of any request by the SEC for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (v) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose, (vi) of the issuance by any state
securities commission or other regulatory authority of any order suspending
the qualification or the exemption from qualification of the Notes under state
securities or Blue Sky laws or the initiation of any proceedings for that
purpose and (vii) of any change in (or withdrawal of) the rating assigned by
any nationally recognized statistical rating organization to any debt
securities of the Company or the public announcement by any nationally
recognized statistical rating organization that it has under surveillance or
review, with possible negative implications, its rating of any debt securities
of the Company. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) The Company will furnish the Agents with copies
of any additional registration statements with respect to the registration of
additional Notes, any amendments to the Registration Statement or any
amendments or supplements to the Prospectus (other than an amendment or
supplement providing solely for a change in the interest rates of Notes or
made by the filing of documents pursuant to the 1934 Act) a reasonable amount
of time prior to such proposed filing for their review and comment.
(c) The Company will deliver to the Agents as many
conformed copies of the Registration Statement as originally filed and of each
amendment thereto as the Agents may reasonably request. The Company will
furnish to each Agent as many copies of the Prospectus (as amended or
supplemented) as such Agent shall reasonably request so long as such Agent is
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes.
(d) The Company will prepare, with respect to any
Notes to be sold through or to one or more Agents pursuant to this Agreement,
a pricing supplement with respect to such Notes in a form previously approved
by such Agent or Agents and will file such pricing supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the SEC
on the fifth business day after the date on which such pricing supplement is
first used.
(e) Except as otherwise provided in the last
paragraph of this Section, if at any time during the term of this Agreement
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the Prospectus not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, notice shall be promptly given, and
confirmed in writing, to each of the Agents to cease the solicitation of
offers to purchase the Notes in the Agents' capacity as agents and to cease
sales of any Notes the Agents may then own as principal and, if so notified by
the Company, the Agents shall forthwith suspend such solicitation and sales.
If any Agent then owns Notes purchased by it as principal pursuant to this
Agreement or has agreed to purchase Notes as principal pursuant to this
Agreement, the Company will forthwith amend or supplement the Registration
Statement and the Prospectus, whether by filing documents pursuant to the 1934
Act, the 1933 Act or otherwise, so that, as so amended or supplemented, the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
to make the Registration Statement and Prospectus comply with such
requirements; the Company will furnish to the Agents a reasonable number of
copies of any amendment or supplement to the Registration Statement or
Prospectus.
(f) Except as otherwise provided in the last
paragraph of this Section, on or prior to the date on which there shall be
released to the general public interim financial statement information related
to the Company with respect to each of the first three quarters of any fiscal
year or preliminary financial statement information with respect to any fiscal
year, the Company shall furnish such information to the Agents, confirmed in
writing, and shall cause the Prospectus to be amended or supplemented to
include or incorporate by reference financial information with respect thereto
and corresponding information for the comparable period of the preceding
fiscal year, as well as such other information and explanations as shall be
necessary for an understanding thereof or as shall be required by the 1933 Act
or the 1933 Act Regulations.
(g) Except as otherwise provided in the last
paragraph of this Section, on or prior to the date on which there shall be
released to the general public financial information included in or derived
from the audited financial statements of the Company for the preceding fiscal
year, the Company shall cause the Registration Statement and the Prospectus to
be amended, whether by the filing of documents pursuant to the 1934 Act, the
1933 Act or otherwise, to include or incorporate by reference such audited
financial statements and the report or reports, and consent or consents to
such inclusion or incorporation by reference, of the independent accountants
with respect thereto, as well as such other information and explanations as
shall be necessary for an understanding of such financial statements or as
shall be required by the 1933 Act or the 1933 Act Regulations.
(h) The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, if the fiscal quarter referred to below
is the last fiscal quarter of the Company's fiscal year, and otherwise 45 days
after the close of the period covered thereby, an earnings statement (in form
and in a manner complying with the provisions of Rule 158 under the 1933 Act
Regulations) covering each twelve-month period beginning, in each case, not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in such Rule 158) of the Registration Statement
with respect to each sale of Notes.
(i) The Company will endeavor, in cooperation with
the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents shall reasonably request (with a good faith intent at that time to
offer or sell the Notes in such jurisdiction); provided, however, that the
Company shall not be obligated to qualify as a foreign corporation or to
execute a general consent as to service of process in any jurisdiction in
which it is not so qualified or to make any undertakings with respect to the
conduct of its business therein. In each jurisdiction in which the Notes have
been so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for so long as may be required in connection with the distribution of
the Notes.
(j) The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(k) The Company will use the net proceeds received
by it from each sale of the Notes in the manner specified in the Prospectus
under "Use of Proceeds."
(l) If specified by an Agent in connection with a
purchase by it of Notes as principal, between the date of the agreement to
purchase such Notes and the Settlement Date with respect to such purchase, the
Company will not, without such Agent's prior written consent, offer or sell,
or enter into any agreement to sell, any debt securities of the Company (other
than the Notes that are to be sold pursuant to such agreement, debt securities
previously agreed to be sold by the Company of which such Agent was advised by
the Company prior to the time of such agreement to purchase and commercial
paper in the ordinary course of business).
The Company shall not be required to comply with the
provisions of subsections (e), (f) or (g) of this Section during any period
from the time (i) each Agent shall have suspended solicitation of purchases of
the Notes in its capacity as agent pursuant to a request from the Company and
(ii) no Agent shall then hold any Notes purchased by it as principal pursuant
hereto, until the time the Company shall determine that solicitation of
purchases of the Notes should be resumed or one or more Agents shall
subsequently purchase Notes from the Company as principal pursuant hereto.
SECTION 5. Conditions of Obligations.
The obligations of each Agent to purchase Notes as principal
and to solicit offers to purchase the Notes as agent of the Company, and the
obligations of any purchasers of the Notes sold through one or more Agents as
agents, will be subject to the accuracy of the representations and warranties
of the Company herein contained and to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the
provisions hereof in connection with the sale of such Notes, to the performance
by the Company of its obligations hereunder and to the following further
conditions:
(a) Legal Opinions. On the date hereof, the Agents
shall have received the following legal opinions, dated as of the date hereof
and in form and substance satisfactory to the Agents:
(1) The opinion of Piper & Marbury LLP, counsel to
the Company, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good standing under
the laws of the State of Maryland; and the Company has the
corporate power under the laws of the State of Maryland and under
its charter to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and
the Prospectus;
(ii) Each of this Agreement, the Indenture
and the Supplemental Indenture has been duly authorized, executed
and delivered by the Company;
(iii) The Notes, in the forms certified by
the Company as of the date hereof, have been duly authorized by
the Company; and
(iv) The execution and delivery by the
Company of, and the performance by the Company of its obligations
under, this Agreement, the Indenture, the Supplemental Indenture
and the Notes will not contravene any provision of any material
applicable law of the State of Maryland or the charter or by-laws
of the Company (except that no opinion need be expressed with
respect to Maryland securities or Blue Sky laws).
(2) The opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Vice
President and General Counsel - Corporate Affairs of the Company, to the
effect that:
(i) To the best of such counsel's knowledge
and information, the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where
the failure to so qualify and be in good standing would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings or business affairs of the Company and its
subsidiaries, taken as a whole.
(ii) Anchor National Life Insurance Company
is validly existing as a corporation in good standing under the
laws of the State of California and has the corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and the
Prospectus. SunAmerica Life Insurance Company is validly existing
as a corporation in good standing under the laws of the State of
Arizona. Nothing has come to the attention of such counsel to
lead such counsel to believe that any of SunAmerica Life Insurance
Company, Anchor National Life Insurance Company or SunAmerica
Asset Management Corp. is not duly qualified as a foreign
corporation to transact business or is not in good standing in
each jurisdiction in which such qualification is required, except
where the failure to so qualify or be in good standing would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Company and
its subsidiaries, taken as a whole. All of the issued and
outstanding capital stock of each Subsidiary that is owned
directly or through subsidiaries by the Company is owned free and
clear, to the best of such counsel's knowledge and information, of
any mortgage, pledge, lien or other encumbrance (except for
Permitted Liens (as defined in the Indenture) or as otherwise
permitted by the Indenture).
(iii) To the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement is in effect under the 1933 Act, and no
proceedings for such purpose are pending before or threatened by
the SEC.
(iv) At the time the Registration Statement
became effective, the Registration Statement and at the date of
such opinion, the Prospectus (other than the financial statements,
supporting schedules and other financial data included or
incorporated by reference therein, as to which no opinion need be
rendered) appeared on its face to be appropriately responsive in
all material respects to the requirements of the 1933 Act and the
1933 Act Regulations.
(v) Each document filed pursuant to the
1934 Act and incorporated by reference in the Prospectus, at the
time it was filed or last amended (other than financial
statements, supporting schedules and other financial data included
or incorporated by reference therein, as to which no opinion need
be rendered), appeared on its face to be appropriately responsive
in all material respects to the requirements of the 1934 Act and
the 1934 Act Regulations.
(vi) To the best of such counsel's knowledge
and information, there are no statutes, regulations, contracts or
other documents required to be described in the Registration
Statement or the Prospectus which are not described as required,
and there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the Registration
Statement, other than those disclosed therein.
(vii) The execution and delivery by the
Company of, and the performance by the Company of its obligations
under, this Agreement, the Indenture and the Notes will not
contravene any provision of any material applicable law or the
articles of incorporation or by-laws of the Company, nor will it
conflict with or constitute a breach of, or a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to, any agreement or other instrument binding
upon the Company or any Subsidiary that is material to the Company
and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company or any Subsidiary.
(viii) No consent, approval, authorization or
order of or qualification with any governmental body or agency is
required for the performance by the Company of its obligations
under this Agreement, the Indenture and the Notes, except such as
may be required under the 1933 Act, the 1933 Act Regulations, or
state securities or Blue Sky or insurance securities laws or
except as have been obtained.
(3) The opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special
counsel to the Company, with respect to the matters set forth in (iii), (iv)
(but not with respect to any documents incorporated by reference) and (viii)
(solely with respect to Federal law and the laws of the State of New York) of
subsection (a)(2) of this Section and to the effect that:
(i) Assuming due authorization, execution
and delivery by the Company, the Indenture is a valid and binding
agreement of the Company, enforceable in accordance with its terms
except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally, and (B) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of
general applicability.
(ii) Assuming that the series of Notes has
been duly authorized, when the terms of a particular Note and its
issuance and sale have been duly established in conformity with
the Indenture, and assuming that such Note has been duly executed
and authenticated in accordance with the provisions of the
Indenture and delivered and paid for by the purchasers thereof in
accordance with the terms of this Agreement, such Note will be
entitled to the benefits of the Indenture and will be a valid and
binding obligation of the Company, enforceable in accordance with
its terms, except as (A) enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally, and (B) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of
general applicability.
(iii) The statements in the Prospectus under
the captions "Description of Notes," "Description of Debt
Securities" and "United States Taxation," in each case insofar as
they constitute summaries of the legal matters or documents
referred to therein, fairly present the information called for
with respect to such legal matters and documents and fairly
summarize the matters referred to therein.
(iv) The Indenture has been duly qualified
under the 1939 Act.
In giving such opinion, such counsel may rely, as to matters
governed by laws other than the laws of the State of New York and the Federal
law of the United States of America, on an opinion of Piper & Marbury, so long
as each such opinion (or in lieu thereof, the letter authorizing such reliance
on an earlier such opinion) shall be dated as of the same date and in form and
substance satisfactory to the Agents, and shall expressly permit the Agents to
rely thereon as if such opinion were addressed to the Agents.
(4) The opinion of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇, counsel to the Agents, with respect to the matters set forth in (iii)
and (iv) (but not with respect to any documents incorporated by reference) of
subsection (a)(2) of this Section and in (i), (ii) and (iii) (but not with
respect to the statements in the Prospectus under the caption "United States
Taxation") of subsection (a)(3) of this Section.
In giving such opinion, such counsel may rely, as to matters
governed by laws other than the laws of the States of California and New York
and the Federal law of the United States of America, on an opinion or opinions
of local counsel satisfactory to the Agents, so long as each such opinion (or
in lieu thereof, the letter authorizing such reliance on an earlier such
opinion) shall be dated as of the date hereof and in form and substance
satisfactory to the Agents, and shall expressly permit the Agents to rely
thereon as if such opinion were addressed to the Agents.
(5) In giving their opinions required by subsections
(a)(2), (a)(3) and (a)(4) of this Section, respectively, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq., ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ shall
each additionally state that they have generally reviewed and discussed with
officers and other representatives of the Company, counsel for the Company,
and representatives of the independent public accountants for the Company the
contents of the Registration Statement and the Prospectus and, although they
are not passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, and they have not made any independent check or
verification thereof, on the basis of the foregoing, nothing has come to their
attention that would lead them to believe that the Registration Statement
(except for (i) financial statements, supporting schedules and other financial
data included or incorporated by reference therein and (ii) that part of the
Registration Statement that constitutes the Form T-1), at the time it became
effective or, if an amendment to the Registration Statement has been filed by
the Company with the SEC subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective, and at the date
of such opinion, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or that the
Prospectus (except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein), as amended or
supplemented at the date hereof, or (if such opinion is being delivered in
connection with the purchase of Notes by an Agent as principal pursuant to
Section 7(c) hereof) at the date of any agreement by an Agent to purchase
Notes as principal and at the Settlement Date with respect thereto, as the
case may be, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(b) Officer's Certificate. At the date hereof, the
Agents shall have received a certificate signed by an executive officer of the
Company, substantially in the form of Appendix I hereto and dated as of the
date hereof, to the effect that (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus or in
the case of an officer's certificate delivered on the Settlement Date
following the agreement of an Agent to purchase Notes as principal, since the
date of such agreement, there has not been any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings or business affairs of the Company
and its subsidiaries, taken as a whole, (ii) the representations and
warranties of the Company contained in Section 2 hereof are true and correct
with the same force and effect as though expressly made at and as of the date
of such certificate and (iii) the Company has performed or complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate.
(c) Comfort Letter. On the date hereof, the Agents
shall have received a letter from Price Waterhouse, dated as of the date
hereof and in form and substance satisfactory to the Agents, to the effect
that:
(i) They are independent public accountants
with respect to the Company and its subsidiaries within the
meaning of the 1933 Act and the applicable published rules and
regulations thereunder.
(ii) It is their opinion that the financial
statements audited by them and incorporated by reference in the
Registration Statement comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act, the
1934 Act and the published rules and regulations thereunder with
respect to registration statements on Form S-3.
(iii) Based upon limited procedures set forth
in detail in such letter, nothing has come to their attention
which causes them to believe that: (A) the unaudited consolidated
condensed financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement
and Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and
the 1934 Act as it applies to Form 10-Q and the published rules
and regulations thereunder or any material modifications should be
made to such unaudited consolidated condensed financial statements
for them to be in conformity with generally accepted accounting
principles or (B) at August 31, 1995, there has been any change in
the capital stock of the Company or any increase in the senior
indebtedness or subordinated notes and debentures of the Company
and its subsidiaries or any decrease in the total assets as
compared with the amounts shown on the most recent balance sheet
of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and Prospectus or, during
the period from the date of such balance sheet to August 31, 1995,
there were any decreases, as compared with the corresponding
period in the preceding year, in unaudited consolidated investment
income, net investment income, net income (loss) and net income
(loss) per share of the Company and its subsidiaries, except in
all instances for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred
or may occur or (C) at a specified date not more than five days
prior to the date of such letter, there has been any change in the
capital stock of the Company or any increase in the borrowings of
the Company and its subsidiaries or any decrease in the total
assets as compared with the amounts shown on the most recent
balance sheet of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and
Prospectus.
(iv) In addition to the examination referred
to in their opinions, and the limited procedures referred to in
clause (iii) above, they have carried out certain other specified
procedures, not constituting an audit, with respect to financial
information and certain amounts and percentages which are
derivable from financial information and which are included or
incorporated by reference in the Registration Statement and
Prospectus and which are specified by the Agents, and have found
such amounts, percentages and financial information to be in
agreement with the relevant accounting and financial records of
the Company and its subsidiaries identified in such letter.
(d) Other Documents. On the date hereof and on each
Settlement Date, counsel to the Agents shall have been furnished with such
documents and opinions as such counsel may reasonably require for the purpose
of enabling such counsel to pass upon the issuance and sale of Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the fulfillment
of any of the conditions herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Notes as herein
contemplated shall be satisfactory in form and substance to the Agents and to
counsel to the Agents.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement (or, at
the option of an Agent, any applicable agreement by an Agent to purchase Notes
as principal) may be terminated by the Agents by notice to the Company at any
time and any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(h) hereof, the indemnity and contribution
agreement set forth in Sections 8 and 9 hereof, the provisions concerning
payment of expenses under Section 10 hereof, the provisions concerning the
representations, warranties and agreements to survive delivery of Section 11
hereof, the provisions relating to governing law set forth in Section 14 and
the provisions set forth under "Parties" of Section 15 hereof shall remain in
effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through one or more Agents as agents
shall be made by the Company to such Agent or Agents for the account of any
purchaser only against payment therefor in immediately available funds. In
the event that a purchaser shall fail either to accept delivery of or to make
payment for a Note on the date fixed for settlement, such Agent or Agents
shall promptly notify the Company and deliver the Note to the Company, and, if
such Agent or Agents have theretofore paid the Company for such Note, the
Company will promptly return such funds to the respective Agent or Agents. If
such failure occurred for any reason other than default by one or more Agents
in the performance of their obligations hereunder, the Company will reimburse
the respective Agent or Agents on an equitable basis for its loss of the use
of the funds for the period such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties.
Each acceptance by it of an offer for the purchase of Notes (whether to one or
more Agents as principal or through one or more Agents as agents), and each
delivery of Notes to one or more Agents as principal or through one or more
Agents as agents, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement are
true and correct at the time of such acceptance or sale, as the case may be,
and an undertaking that such representations and warranties will be true and
correct at the time of delivery to the purchaser or its agents, or to an
Agent, of the Note or Notes relating to such acceptance or sale, as the case
may be, as though made at and as of each such time (provided that it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) Subsequent Delivery of Certificates. Each time
that (i) the Registration Statement or the Prospectus shall be amended or
supplemented (other than by (A) a pricing supplement or other amendment or
supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities of Notes or similar changes
(collectively, "Pricing Terms"), (B) an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes or (C)
except as provided below, the filing of any document incorporated by reference
therein), (ii) there is filed with the SEC any periodic report on Form 10-K or
10-Q, or a current report on Form 8-K containing information called for by any
of Items 1 through 4 thereof, (iii) (if required in connection with the
purchase of Notes by an Agent as principal) the Company sells Notes to an
Agent as principal or (iv) the Company issues and sells Notes in a form not
previously certified to the Agents by the Company, the Company shall furnish or
cause to be furnished to the Agents forthwith a certificate dated the date of
filing with the SEC of such supplement or document, the date of effectiveness
of such amendment, or the date of such sale, as the case may be, in form
satisfactory to the Agents to the effect that the statements contained in the
certificate referred to in Section 5(b) hereof which were last furnished to
the Agents are true and correct at the time of such amendment, supplement,
filing or sale, as the case may be, as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time
that (i) the Registration Statement or the Prospectus shall be amended or
supplemented (other than by (A) a pricing supplement or other amendment or
supplement providing solely for Pricing Terms or solely for the inclusion of
additional financial information, or any pricing supplement in connection with
a purchase of Notes by an Agent as principal, (B) an amendment or supplement
which relates exclusively to an offering of debt securities other than the
Notes or (C) except as provided below, the filing of any document incorporated
by reference therein), (ii) there is filed with the SEC any periodic report on
Form 10-K or 10-Q, or a current report on Form 8-K containing information
called for by any of Items 1 through 4 thereof, (iii) the Company sells Notes
to an Agent as principal (provided that in the case of a purchase of Notes
with respect to which the applicable pricing supplement provides solely for
Pricing Terms or solely for the inclusion of additional financial information,
only if required by such Agent) or (iv) the Company issues and sells Notes in
a form not previously certified to the Agents by the Company, the Company shall
furnish or cause to be furnished forthwith to the Agents and to counsel to the
Agents written opinions of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, or
in either case other counsel satisfactory to the Agents, dated the date of
filing with the SEC of such supplement or document, the date of effectiveness
of such amendment, or the date of such sale, as the case may be (except that
no opinion other than that of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. or other counsel
satisfactory to the Agents shall be required solely as a result of the filing
by the Company with the SEC of any periodic report on Form 10-Q or any of the
above-referenced current reports on Form 8-K), in form and substance
satisfactory to the Agents, of the same tenor in the case of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq. or such other counsel as the opinion referred to in Section 5(a)(2)
hereof and in the case of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ or such other counsel as the
opinion referred to in Section 5(a)(3) hereof (including the opinion of each
required by Section 5(a)(5) hereof) but modified, as necessary, to relate to
the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such opinion; or, in lieu of such opinion, counsel
last furnishing such opinion to the Agents shall furnish the Agents with a
letter substantially in the form of Appendix II hereto to the effect that the
Agents may rely on such last opinion to the same extent as though it was dated
the date of such letter authorizing reliance (except that statements in such
last opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each
time that (i) the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information (other than by (A)
any pricing supplement in connection with a purchase of Notes by an Agent as
principal, (B) an amendment or supplement which relates exclusively to an
offering of debt securities other than the Notes or (C) except as provided
below, the filing of any document incorporated by reference therein), (ii)
there is filed with the SEC any periodic report on Form 10-K or 10-Q, or any
current report on Form 8-K containing information called for by Item 7
thereof, or (iii) the Company sells Notes to an Agent as principal (provided
that in the case of a purchase of Notes with respect to which the applicable
pricing supplement provides solely for Pricing Terms, only if required by such
Agent), the Company shall cause Price Waterhouse forthwith to furnish the
Agents a letter, dated the date of effectiveness of such amendment, the date
of filing such supplement or document with the SEC, or the date of such sale,
as the case may be, in form satisfactory to the Agents, of the same tenor as
the portions of the letter referred to in clauses (i) and (ii) of Section 5(c)
hereof but modified to relate to the Registration Statement and Prospectus, as
amended and supplemented to the date of such letter, and of the same general
tenor as the portions of the letter referred to in clauses (iii) and (iv) of
said Section 5(c) with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the accounting
records of the Company; provided, however, that if the Registration Statement
or the Prospectus is amended or supplemented solely to include financial
information as of and for a fiscal quarter, Price Waterhouse may limit the
scope of such letter to the unaudited financial statements included in such
amendment or supplement unless any information included therein of an
accounting, financial or statistical nature is of such a nature that, in the
reasonable judgment of the Agents, such letter should cover such other
information.
SECTION 8. Indemnification.
(a) The Company agrees to indemnify and hold
harmless each Agent and each person, if any, who controls such Agent within
the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934
Act, from and against any and all losses, claims, damages and liabilities,
joint or several (including, without limitation, any legal fees or other
expenses reasonably incurred by any Agent or any such controlling person in
connection with defending or investigating any such action or claim), caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any prior prospectus relating to the
Notes, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information furnished to the Company by such Agent in writing expressly
for use therein; provided, however, that the foregoing indemnity agreement
shall not inure to the benefit of any Agent, or any person controlling such
Agent, if the asserted losses, claims, damages or liabilities arise from any
sale of Notes to any person resulting from a solicitation made or an offer to
purchase received by such Agent, or from any sale of Notes by such Agent to
such person, and a copy of the Prospectus (as then amended or supplemented, if
the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Agent to such person, if required by
law so to have been delivered, at or prior to such sale, and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to
such losses, claims, damages or liabilities. This indemnity will be in
addition to any liability which the Company may otherwise have.
(b) Each Agent agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act to the same extent as the foregoing indemnity from the Company to
such Agent, but only to the extent that any untrue statement or omission or
alleged untrue statement or omission was made in reliance upon and in
conformity with information furnished to the Company by such Agent in writing
expressly for use in the Registration Statement, the Prospectus, any prior
prospectus relating to the Notes or any amendments or supplements thereto.
This indemnity will be in addition to any liability which the Agents may
otherwise have.
(c) In case any proceeding (including any
governmental investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the indemnified
party, shall retain within a reasonable time counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Agent that is a
party to the proceeding (or, if more than one Agent is a party to the
proceeding, by mutual agreement of the Agents), in the case of parties
indemnified pursuant to the second preceding paragraph, and by the Company, in
the case of parties indemnified pursuant to the first preceding paragraph. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
SECTION 9. Contribution.
(a) If the indemnification provided for in the first
or second paragraph of Section 8 hereof is unavailable to an indemnified party
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and
the Agent or Agents participating in the sale of the Notes that gave rise to
such losses, claims, damages or liabilities (the "Relevant Notes") on the other
hand from the sale of the Relevant Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of
the Agent or Agents participating in the sale of the Relevant Notes on the
other hand, in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and such Agent or Agents on the other hand in connection with the
sale of the Relevant Notes shall be deemed to be in the same respective
proportions as the net proceeds from the sale of the Relevant Notes (before
deducting expenses) received by the Company and the total discounts and
commissions received by the Agents from the sale of the Relevant Notes bear to
the aggregate initial offering price of the Relevant Notes. The relative
fault of the Company on the one hand and of such Agent or Agents on the other
hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by such Agent or Agents and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Agents' respective obligations to contribute
pursuant to this Section 9 are several in proportion to the respective
principal amounts of Relevant Notes sold to or through each of such Agents and
not joint.
(b) The Company and the Agents agree that it would
not be just or equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Agents were treated as one
entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 9, no
Agent shall be required to contribute any amount in excess of the amount by
which the total price at which the Relevant Notes were sold through or by it
to the public exceeds the amount of any damages that such Agent has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 9 are
not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(c) The indemnity and contribution provisions
contained in Section 8 and Section 9 hereof and the representations and
warranties of the Company contained herein shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Agent or any person controlling any
Agent or by or on behalf of the Company, its directors or officers or any
person controlling the Company and (iii) acceptance of and payment for any of
the Notes.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including:
(a) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any amendments or
supplements thereof;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery
of the Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) The fees and disbursements of the Company's
accountants and counsel, of the Trustee and its counsel, and of any
calculation agents or exchange rate agents;
(e) The reasonable fees and disbursements of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to the Agents, or such other
counsel to the Agents reasonably acceptable to the Company, incurred in
connection with the establishment of the program relating to the Notes and
incurred from time to time in connection with the transactions contemplated
hereby;
(f) The qualification of the Notes under state
securities laws in accordance with the provisions of Section 4(i) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Agents in connection therewith and in connection with the preparation of
any Blue Sky Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration Statement and
any amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agents of the Prospectus and any
amendments or supplements thereto in connection with solicitations or
confirmations of sales of the Notes;
(h) The preparation, reproduction and delivery to
the Agents of copies of the Indenture and all supplements and amendments
thereto;
(i) Any fees charged by rating agencies for the
rating of the Notes;
(j) The fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers,
Inc.;
(k) Any advertising and other out-of-pocket expenses
of the Agents incurred with the approval of the Company;
(l) The cost of providing any CUSIP or other
identification numbers for the Notes; and
(m) The fees and expenses of any Depositary (as
defined in the Indenture) and any nominees thereof in connection with the
Notes.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the Agents or
any controlling person of the Agents, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) This Agreement (excluding any agreement
hereunder by one or more Agents to purchase Notes as principal) may be
terminated for any reason, at any time by the Company or, as to any Agent, by
the Company or such Agent, upon the giving of 15 days' written notice of such
termination to the other parties hereto.
(b) An Agent may terminate any agreement hereunder
by such Agent to purchase Notes as principal, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto (i) if
there has been, since the date of such agreement or since the respective dates
as of which information is given in the Registration Statement, any material
adverse change or any development involving a prospective material adverse
change in the condition, financial or otherwise, or in the earnings or
business affairs of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred, since the date of such agreement, any outbreak or
escalation of hostilities or any change in financial markets or other calamity
or crisis that, in the judgment of such Agent, is material and adverse, or
(iii) if, since the date of such agreement, trading in any securities of the
Company has been suspended by a national securities exchange, or trading
generally on either the American Stock Exchange or the New York Stock Exchange
shall have been suspended, or if, since such date, a general moratorium on
commercial banking activities in New York shall have been declared by Federal
or New York State authorities or if a banking moratorium shall have been
declared by the relevant authorities in the country or countries of origin of
any foreign currency or currencies in which the Notes are denominated or
payable, or (iv) if, since the date of such agreement, the rating assigned by
any "nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the 1933 Act, to any debt
securities of the Company shall have been lowered or if, since such date, any
such rating organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
debt securities of the Company, and in the case of any of the events specified
in clause (ii) or (iii), such event, singly or together with any other such
event, makes it, in the judgment of such Agent, impracticable to market the
Notes on the terms and in the manner contemplated by the Prospectus, as
amended or supplemented at the date of the agreement by such Agent to purchase
Notes as principal.
(c) In the event of any termination under this
Section 12, the Company will have no liability to any Agent as to which this
Agreement is so terminated and such Agent will have no liability to the
Company, except that with respect to any termination under Section 12(a), (i)
such Agent shall be entitled to any commission earned in accordance with the
third paragraph of Section 3(b) hereof, (ii) if at the time of termination (a)
such Agent shall own any Notes purchased by it as principal pursuant to this
Agreement with the intention of reselling them or (b) an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or his agents of the Note or Notes relating thereto has not
occurred, the covenants set forth in Section 4 and (in the circumstance
described in clause (b)) Section 7 hereof shall remain in effect until such
Notes are so resold or delivered, as the case may be, (iii) if at the time of
termination such Agent shall own any Notes purchased by it as principal
pursuant to this Agreement with the intention of reselling them, the covenants
set forth in Section 7 hereof shall remain in effect until the earlier of (x)
such time as such Notes are resold or (y) 180 days from the last date on which
any of such Notes were purchased from the Company by such Agent (except that
the Company shall, at the request of such Agent, deliver the certificates,
opinions and letters specified in Section 7 hereof after the date set forth in
clause (y), but not after the date set forth in clause (x), if such Agent,
notwithstanding the provisions of Section 10, pays all expenses incident to
the preparation and delivery of the certificates, opinions and letters that
the Company is required to deliver solely as a consequence of this
parenthetical), and (iv) the covenant set forth in Section 4(h) hereof, the
indemnity and contribution agreements set forth in Sections 8 and 9 hereof,
the provisions of Section 10 hereof, and the provisions of Sections 11, 14 and
15 hereof shall remain in effect.
SECTION 13. Notices.
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Agents shall be
directed as follows:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Chase Securities, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Desk
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Registration Department
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-0060
Attention: Transaction Execution Group
PaineWebber Incorporated
Fixed Income Capital Markets
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Notices to the Company shall be directed as follows:
SunAmerica Inc.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-6022
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding
upon the Agents and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the parties hereto and respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Notes shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. Amendments.
This Agreement may be amended or supplemented if, but only
if, such amendment or supplement is in writing and is signed by the Company
and each Agent; provided that the Company may from time to time, on prior
written notice to the Agents but without the consent of any Agent, amend this
Agreement to add as party hereto one or more additional firms registered under
the 1934 Act, whereupon each such firm shall become an Agent hereunder on the
same terms and conditions as the other Agents that are parties hereto. The
Agents shall sign any amendment or supplement the sole effect of which is the
addition of any such firm pursuant to this Section 16 as an Agent under this
Agreement.
If the foregoing is in accordance with the Agents'
understanding of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument along with all counterparts will
become a binding agreement between the Agents and the Company in accordance
with its terms.
Very truly yours,
SUNAMERICA INC.
By:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President &
Treasurer
Accepted:
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
Name: ___________________
Title: ___________________
CHASE SECURITIES, INC.
By:
Name: _______________________
Title: _______________________
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By:
Name: _______________________
Title: _______________________
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By:
Name: _______________________
Title: _______________________
PAINEWEBBER INCORPORATED
By:
Name: _______________________
Title: _______________________
SCHEDULE A
As compensation for the services of the Agents hereunder,
the Company shall pay it, on a discount basis, a commission for the sale of
each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below (or with respect to any Note for which
the maturity is in excess of 30 years, such commission as shall be agreed to
by the Company and an Agent):
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From more than 9 months to less than 1 year.................. .125%
From 1 year to less than 18 months........................... .150
From 18 months to less than 2 years.......................... .200
From 2 years to less than 3 years............................ .250
From 3 years to less than 4 years............................ .350
From 4 years to less than 5 years............................ .450
From 5 years to less than 6 years............................ .500
From 6 years to less than 7 years............................ .550
From 7 years to less than 10 years........................... .600
From 10 years to less than 15 years.......................... .625
From 15 years to less than 20 years.......................... .700
From 20 years to 30 years.................................... .750
Appendix I
OFFICER'S CERTIFICATE
The undersigned, [name], [title], of SunAmerica Inc., a
Maryland corporation (the "Company"), pursuant to Section 5(b) of the
Distribution Agreement, dated October 19, 1995 (the "Distribution Agreement"),
by and among the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Chase Securities, Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇.▇. ▇▇▇▇▇▇ Securities Inc. and PaineWebber Incorporated, relating to the sale
of up to $300,000,000 aggregate initial offering price of the Company's
Medium-Term Notes, Series 2, hereby certifies that:
1. Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (each as defined in the
Distribution Agreement) [or, in the case of a certificate delivered on the
Settlement Date following the agreement of an Agent to purchase Notes as
principal, since the date of such agreement], there has not been any material
adverse change, or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings or
business affairs of the Company and its subsidiaries, taken as a whole;
2. The representations and warranties of the Company
contained in Section 2 of the Distribution Agreement are true and correct with
the same force and effect as though expressly made at and as of the date
hereof;
3. The Company has performed or complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date hereof; and
4. ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ are each entitled to rely upon this Officer's
Certificate in connection with the opinions given by such firms pursuant to
Sections 5(a)(l), 5(a)(3) and 5(a)(4), respectively, of the Distribution
Agreement.
IN WITNESS WHEREOF, the undersigned has hereunto signed his
name this th day of , 19 .
-----------------------------
[Name]
[Title]
Appendix II
, 19
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Chase Securities, Inc.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
PaineWebber Incorporated
Re: SunAmerica MTN Program
Dear Sirs:
[We] [I] have delivered an opinion (the "Opinion") to you,
dated ________, 19__, as [special] counsel to SunAmerica Inc. (the "Company,
pursuant to Section [5(a)(2)/5(a)(3)] of the Distribution Agreement, dated
October 19, 1995 (the "Distribution Agreement"), by and among the Company and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Chase
Securities, Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇.▇ ▇▇▇▇▇▇ Securities Inc. and
PaineWebber Incorporated. This letter is delivered pursuant to Section 7(c)
of the Distribution Agreement.
You may rely on the Opinion to the same extent as though it
was dated the date hereof (except that statements in the Opinion shall be
deemed to relate to the Registration Statement and the Prospectus (each as
defined in the Distribution Agreement) as amended and supplemented to the date
hereof).
Very truly yours,
EXHIBIT A
The following terms, if applicable, shall be agreed to by
the Agents and the Company in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agents:
If CMT Rate Notes
Designated CMT Telerate Page:
Designated CMT Maturity Index:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than
U.S. dollar):
Currency of Payment:
Additional Terms:
Also, in connection with the purchase of Notes by an Agent as principal,
agreement as to whether the following will be required:
Stand-off Agreement pursuant to Section 4(1) of the
Distribution Agreement.
Officer's Certificate pursuant to Section 7(b) of
the Distribution Agreement.
Legal Opinion pursuant to Section 7(c) of the
Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the
Distribution Agreement.
EXHIBIT B
SUNAMERICA INC.
ADMINISTRATIVE PROCEDURES
for Fixed and Floating Rate Medium-Term Notes, Series 2
(Dated as of October 19, 1995)
Medium Term Notes, Series 2 (the "Notes") are to be offered on a
continuing basis by SunAmerica Inc., a Maryland corporation (the "Company"),
to or through ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, Chase Securities, Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇.▇. ▇▇▇▇▇▇
Securities Inc. and PaineWebber Incorporated (each an "Agent" and,
collectively, the "Agents"), pursuant to a Distribution Agreement dated
October 19, 1995 (the "Distribution Agreement") between the Company and the
Agents. The Distribution Agreement provides both for the sale of Notes by the
Company to one or more of the Agents as principal for resale to investors and
other purchasers and for the sale of Notes by the Company directly to
investors (as may from time to time be agreed to by the Company and the
related Agent or Agents) in which case one or more Agents will act as agents
of the Company in soliciting Note purchases.
Unless otherwise agreed by the related Agent or Agents and the
Company, Notes will be purchased by the related Agent or Agents as principal.
Such purchases will be made in accordance with terms agreed upon by the
related Agent or Agents and the Company (which terms shall be agreed upon in
writing or orally, with written confirmation prepared by the related Agent or
Agents and mailed to the Company). If agreed upon by any Agent or Agents and
the Company, such Agent or Agents, acting solely as agent or agents for the
Company and not as principal, will use reasonable efforts to solicit offers to
purchase the Notes. Only those provisions in these Administrative procedures
that are applicable to the particular role that an Agent will perform shall
apply.
The Notes will be issued as a series of debt securities pursuant
to a Senior Indenture, dated as of April 15, 1993 (the "Indenture"), as
supplemented by the Supplemental Indenture dated as of June 28, 1993, between
the Company and The First National Bank of Chicago, as trustee (the
"Trustee"), and are in the respective forms attached as Exhibits E-1, E-2, E-3
and E-4 to the Secretary's Certificate of the Company as referred to in the
Officer's Certificate delivered to the Trustee on the date hereof pursuant to
Section 2.1 of the Indenture. In accordance with the provisions of the
Indenture, First Chicago Trust Company of New York has been duly appointed by
the Trustee as Authenticating Agent. The Company has duly appointed First
Chicago Trust Company of New York and The First National Bank of Chicago as
Transfer Agents and Paying Agents. "Issuing Agent," as used herein, means The
First National Bank of Chicago.
A Registration Statement (the "Registration Statement," which term
shall include any additional registration statements or amendments thereto
filed in connection with the Notes as provided in the introductory paragraph
of the Distribution Agreement) with respect to the Notes has been filed with
the Securities and Exchange Commission (the "Commission"). The most recent
base Prospectus included in the Registration Statement, as supplemented with
respect to the Notes, is herein referred to as the "Prospectus." The most
recent supplement to the prospectus setting forth the purchase price, interest
rate, maturity date and other terms of the Notes (as applicable) is herein
referred to as the "Pricing Supplement."
The Notes will either be issued (a) in book-entry form and
represented by one or more fully registered Notes (each, a "Book-Entry Note")
delivered to the Issuing Agent, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC, or (b) in
definitive form (each, a "Definitive Note") delivered to the investor or other
purchaser thereof or a person designated by such investor or other purchaser.
Owners of beneficial interests in Notes issued in book-entry form will be
entitled to physical delivery of Notes in definitive form equal in principal
amount to their respective beneficial interests only upon certain limited
circumstances described in the Prospectus and the Indenture.
General procedures relating to the issuance of all Notes are set
forth in Part I hereof. Additionally, Notes issued in book-entry form will be
issued in accordance with the procedures set forth in Part II hereof and Notes
issued in definitive form will be issued in accordance with the procedures set
forth in Part III hereof. The following procedures shall also be deemed to
include all relevant procedures described in the DTC Letter of Representations
dated October 19, 1995, to the extent that such procedures are not set forth
below. Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Indenture or the Notes, as the case
may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of
its authentication by the Issuing Agent.
Each Note shall also bear an original
issue date (the "Original Issue Date").
The Original Issue Date shall remain the
same for all Notes subsequently issued
upon transfer, exchange or substitution of
an original Note regardless of their dates
of authentication.
Maturities: Each Note will mature on a date selected
by the investor or other purchaser and
agreed to by the Company which, unless
otherwise provided in the applicable
Pricing Supplement, is not less than nine
months, nor more than 30 years, from its
Original Issue Date.
Registration: Notes will be issued only in fully
registered
form.
Denominations: Unless otherwise provided in the
applicable Pricing Supplement, Notes will
be issued in denominations of $1,000 or
any integral multiple of $1,000 in excess
thereof.
Base Rates applicable
to Floating Rate
Notes: Unless otherwise provided in the
applicable Pricing Supplement, Notes
bearing interest at rates determined by
reference to selected indices ("Floating
Rate Notes") (except for certain Original
Issue Discount Notes) will bear interest
at a rate or rates determined by reference
to one or more of the CD Rate ("CD Rate
Notes"), the Commercial Paper Rate
("Commercial Paper Rate Notes"), the
Eleventh District Cost of Funds Rate (the
"Eleventh District Notes"), the Federal
Funds Rate ("Federal Funds Rate Notes"),
LIBOR ("LIBOR Notes"), the Prime Rate
("Prime Rate Notes"), the CMT Rate ("CMT
Rate Notes"), the Treasury Rate ("Treasury
Rate Notes"), as adjusted by the Spread
and/or Spread Multiplier, if any,
applicable to such Floating Rate Notes.
Redemption/Repayment: The Notes will be subject to repayment at
the option of the Holders thereof in
accordance with the terms of the Notes on
their respective Optional Repayment Dates,
if any. Optional Repayment Dates, if any,
will be fixed at the time of sale and set
forth in the applicable Pricing Supplement
and in the applicable Note. If no Optional
Repayment Dates are indicated with respect
to a Note, such Note will not be repayable
at the option of the Holder prior to its
Stated Maturity Date.
The Notes will be subject to redemption by
the Company on and after their respective
Initial Redemption Date, if any. The
Initial Redemption Date, if any, will be
fixed at the time of sale and set forth in
the applicable Pricing Supplement and in
the applicable Note. If no Initial
Redemption Date is indicated with respect
to a Note, such Note will not be
redeemable prior to its Stated Maturity
Date.
Calculation of
Interest: With respect to any Fixed Rate Note, if
the Day Count Convention specified on the
applicable Note is "30/360," interest will
be calculated and paid on the basis of a
360-day year of twelve 30-day months; if
the Day Count Convention specified on the
applicable Note is "Actual/360," interest
will be calculated and paid on the basis of
the actual number of days in the interest
period divided by 360; and if the Day
Count Convention specified on the
applicable Note is "Actual/Actual,"
interest will be calculated and paid on
the basis of the actual number of days in
the interest period divided by the actual
number of days in the year.
With respect to any Floating Rate Note,
unless otherwise specified on such Note,
if the Day Count Convention specified on
the applicable Note is "Actual/360,"
interest will be calculated and paid on
the basis of the actual number of days in
the interest period divided by 360; and
if the Day Count Convention specified on
the applicable Note is "Actual/Actual,"
interest will be calculated and paid on
the basis of the actual number of days in
the interest period divided by the actual
number of days in the year.
With respect to each Floating Rate Note,
accrued interest will be calculated by
multiplying its face amount by an accrued
interest factor. Such accrued interest
factor is computed by adding the interest
factor calculated for each day in the
period for which accrued interest is being
calculated. Unless otherwise specified in
the applicable Pricing Supplement, the
interest factor for each such day is
computed by dividing the interest rate
applicable to such day by 360 in the case
of CD Rate Notes, Commercial Paper Rate
Notes, Eleventh District Notes, Federal
Funds Rate Notes, LIBOR Notes or Prime Rate
Notes, or by the actual number of days in
the year in the case of CMT Rate Notes or
Treasury Rate Notes. Unless otherwise
specified in an applicable Pricing
Supplement, the interest factor for Notes
for which the interest rate is calculated
with reference to two or more Interest
Rate Bases will be calculated in each
period in the same manner as if only one
of the applicable Interest Rate Bases
applied as specified in the applicable
Pricing Supplement and the Notes.
Interest: General. Each Note will bear
interest in accordance with its terms.
Unless otherwise specified in an
applicable Pricing Supplement, interest on
each Note will accrue from the Original
Issue Date of such Note for the first
interest period and from the most recent
Interest Payment Date to which interest
has been paid for all subsequent interest
periods. Each payment of interest will
include interest accrued through the day
preceding, as the case may be, the
Interest Payment Date, the Stated Maturity
Date, any redemption date or repayment
date (each Stated Maturity Date,
redemption date or repayment date is
referred to herein as "Maturity").
Interest payable at Maturity will be
payable to the Person to whom the
principal of such Note is payable. If an
Interest Payment Date with respect to any
Fixed Rate Note falls on a day that is not
a Business Day, the payment of interest
required to be made on such Interest
Payment Date need not be made on such day,
but may be made on the next succeeding
Business Day with the same force and
effect as if made on such Interest Payment
Date and no interest shall accrue on such
payment for the period from and after such
Interest Payment Date. If an Interest
Payment Date (other than at Maturity) with
respect to any Floating Rate Note would
otherwise fall on a day that is not a
Business Day, such Interest Payment Date
will be the following day that is a
Business Day, except that in the case of a
LIBOR Note, if such day falls in the next
calendar month, such Interest Payment Date
will be the preceding day that is a
Business Day. If the date of Maturity of
a Note is not a Business Day, the payment
of principal and interest due on such day
shall be made on the next succeeding
Business Day and no interest shall accrue
on such payment for the period from and
after such Maturity. For additional
special provisions relating to Floating
Rate Notes, see the Prospectus and the
applicable Pricing Supplement.
Record Dates. Unless otherwise indicated
in an applicable Pricing Supplement, the
record date with respect to any Interest
Payment Date for a Note shall be the date
15 calendar days (whether or not a
Business Day) preceding such Interest
Payment Date.
Interest Payment Dates. Interest payments
will be made on each Interest Payment Date
commencing with the first Interest Payment
Date following the Original Issue Date;
provided, however, the first payment of
interest on any Note originally issued
between a record date and the related
Interest Payment Date will be made on the
Interest Payment Date following the next
record date to the registered Holder on
such record date.
Fixed Rate Notes. Unless otherwise
provided in an applicable Fixed Rate Note,
interest payments on Fixed Rate Notes will
be made semiannually on June l and
December 1 of each year and at Maturity.
Floating Rate Notes. Interest payments on
Floating Rate Notes will be made as
specified in the related Floating Rate
Note and Pricing Supplement.
Acceptance and
Rejection of Offers: If agreed upon by any Agent and the
Company, such Agent acting solely as agent
for the Company and not as principal will
solicit purchases of the Notes. Each
Agent will communicate to the Company,
orally or in writing, each reasonable
offer to purchase Notes solicited by such
Agent on an agency basis, other than those
offers rejected by such Agent. Each Agent
has the right, in its discretion
reasonably exercised, to reject any
proposed purchase of Notes, as a whole or
in part, and any such rejection is not
deemed a breach of the Agent's agreement
contained in the Distribution Agreement.
The Company has the sole right to accept
or reject any proposed purchase of the
Notes, in whole or in part, and any such
rejection is not deemed a breach of the
Company's agreement contained in the
Distribution Agreement. Each Agent has
agreed to make reasonable efforts to
assist the Company in obtaining
performance by each purchaser whose offer
to purchase Notes has been solicited by
such Agent and accepted by the Company.
Preparation of
Pricing Supplement: If any offer to purchase a Note is
accepted by the Company, the Company will
promptly prepare a Pricing Supplement
reflecting the terms of such Note and file
such Pricing Supplement with the
Commission in accordance with Rule 424
under the Securities Act of 1933.
Information to be included in the Pricing
Supplement shall include:
1. the name of the Company;
2. the title of the securities,
including series designation, if any;
3. the date of the Pricing Supplement
and the dates of the Prospectus and
Prospectus Supplement to which the
Pricing Supplement relates;
4. the name of the Offering Agent (as
hereinafter defined);
5. whether such Notes are being sold to
the Offering Agent as principal or
to an investor or other purchaser
through the Offering Agent acting as
agent for the Company;
6. with respect to Notes sold to the
Offering Agent as principal, whether
such Notes will be resold by the
Offering Agent to investors and other
purchasers (i) at a fixed public
offering price of a specified
percentage of their principal
amount, (ii) at varying prices
related to prevailing market prices
at the time of resale to be
determined by the Offering Agent or
(iii) at 100% of their principal
amount;
7. with respect to Notes sold to an
investor or other purchaser through
the Offering Agent acting as agent
for the Company, whether such Notes
will be sold at (i) 100% of their
principal amount or (ii) at a
specified percentage of their
principal amount;
8. the Offering Agent's commission or
underwriting discount;
9. Net proceeds to the Company;
10. the Principal Amount, Original Issue
Date, Stated Maturity Date, Initial
Redemption Date, if any, Initial
Redemption Percentage, if any, Annual
Redemption Percentage Reduction, if
any, and Optional Repayment Date or
Dates, if any, and, in the case of
Fixed Rate Notes, the Interest Rate,
the Interest Payment Date or Dates
(if other than June l and December 1
of each year) and the record date or
dates (if other than May 15 and
November 15 of each year), and, in
the case of Floating Rate Notes, the
Interest Rate Basis or Bases, the
Index Maturity (if applicable), the
Initial Interest Rate, the Maximum
Interest Rate, if any, the Minimum
Interest Rate, if any, the Interest
Payment Date or Dates, the record
date or dates, the Interest Reset
Date or Dates, the Interest Reset
Period, the Interest Determination
Date, the Spread and/or Spread
Multiplier, if any, and the
Calculation Agent, and if one or
more of the Specified Interest Rate
Bases is LIBOR, the Index Currency
and the Designated LIBOR Page;
11. the information with respect to the
terms of the Notes set forth below
(whether or not the applicable Note
is a Book-Entry Note or a Definitive
Note) under "Procedures for Notes
Issued in Book-Entry Form -
Settlement Procedures," items 1, 2,
6, 7 and 8; and
12. any other provisions of the Notes
material to investors or other
purchasers of the Notes not
otherwise specified in the
Prospectus or Pricing Supplement.
One copy of such filed document will be
sent by telecopy or overnight express (for
delivery as soon as practicable following
the trade, but in no event later than 12:00
noon on the second Business Day following
the applicable trade date) to the Agent
which made or presented the offer to
purchase the applicable Note (in such
capacity, the "Offering Agent"), the
Trustee and the Issuing Agent at the
following applicable address: if to
▇▇▇▇▇▇▇ ▇▇▇▇▇, to: Tritech Services, #▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ / Final Prospectus Unit,
(▇▇▇) ▇▇▇-▇▇▇▇, telecopier (▇▇▇) ▇▇▇-▇▇▇▇;
if to Chase Securities, Inc., to: ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ 10081, Attention: Medium-Term Note
Desk, (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (212)
552-1594; if to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., to:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Registration
Department, (▇▇▇) ▇▇▇-▇▇▇▇, telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇; if to ▇.▇. ▇▇▇▇▇▇
Securities Inc., to: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-0060, Attention: Transaction
Execution Group, (▇▇▇) ▇▇▇-▇▇▇▇,
telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; if to
PaineWebber Incorporated, to: Fixed
Income Capital Markets, 11th Floor, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (212)
247-0371; and if to the Trustee/Issuing
Agent, to: The First National Bank of
Chicago, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Services Division, (312)
407-1761, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇.
For record keeping purposes, one copy of
each Pricing Supplement, as so filed,
shall also be mailed or telecopied to
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ at ▇▇▇
▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇, Esq.; and to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
World Financial Center, North Tower, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇-1310, Attention: MTN Product
Management, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇.
Outdated Pricing Supplements, and the
supplemented Prospectuses to which they
are attached (other than those retained
for files) will be destroyed.
Settlement: The receipt of immediately available funds
by the Company in payment for a Note and
the authentication and delivery of such
Note shall, with respect to such Note,
constitute "settlement." Offers accepted
by the Company will be settled from three
to five Business Days, or at a time as the
purchaser and the Company shall agree,
pursuant to the timetable for settlement
set forth in Parts II and III hereof under
"Settlement Procedures" with respect to
Book-Entry Notes and Definitive Notes,
respectively (each such date fixed for
settlement is hereinafter referred to as
a "Settlement Date"). If procedures A and
B of the applicable Settlement Procedures
with respect to a particular offer are not
completed on or before the time set forth
under the applicable "Settlement
Procedures Timetable," such offer shall
not be settled until the Business Day
following the completion of settlement
procedures A and B or such later date as
the purchaser and the Company shall agree.
The foregoing settlement procedures may be
modified, with respect to any purchase of
Notes by an Agent as principal, if so
agreed by the Company and such Agent.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached
to change the interest rate or any other
variable term on any Notes being sold by
the Company, the Company will promptly
advise the Agents and the Issuing Agent by
facsimile transmission and the Agents will
forthwith suspend solicitation of offers
to purchase such Notes. The Agents will
telephone the Company with recommendations
as to the changed interest rates or other
variable terms. At such time as the
Company advises the Agents and the Issuing
Agent by facsimile transmission of the new
interest rates or other variable terms,
the Agents may resume solicitation of
offers to purchase such Notes. Until such
time only "indications of interest" may be
recorded. Immediately after acceptance
by the Company of an offer to purchase
Notes at a new interest rate or new
variable term, the Company, the Offering
Agent and the Issuing Agent shall follow
the procedures set forth under the
applicable "Settlement Procedures."
Suspension of
Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to
suspend solicitation of offers to purchase
Notes at any time. Upon receipt of such
instructions, the Agents will forthwith
suspend solicitation of offers to purchase
from the Company until such time as the
Company has advised them that solicitation
of offers to purchase may be resumed. If
the Company decides to amend or supplement
the Registration Statement or the
Prospectus (other than an amendment or
supplement providing solely for a change
in interest rates or made by the filing of
documents incorporated by reference) it
will furnish the Agents and their counsel
with copies of the proposed amendment or
supplement for their review and comment.
One copy of the document filed with the
Commission, along with a copy of the cover
letter sent to the Commission, will be
delivered or mailed to the Agents, their
counsel, the Trustee and the Issuing Agent
at the following respective addresses:
MTN Product Management, ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters,
North Tower, World Financial Center, 10th
Floor, New York, New York 10231-1310,
(▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (212)
449-2234; Chase Securities, Inc., to: ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ 10081, Attention:
Medium-Term Note Desk, (▇▇▇) ▇▇▇-▇▇▇▇,
telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; ▇▇▇▇▇▇▇,
Sachs & Co., to: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Registration Department, (212)
902-1000, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; ▇.▇.
▇▇▇▇▇▇ Securities Inc., to: ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
10260-0060, Attention: Transaction
Execution Group, (▇▇▇) ▇▇▇-▇▇▇▇,
telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; if to
PaineWebber Incorporated, to: Fixed
Income Capital Markets, 11th Floor, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (212)
247-0371; and the Trustee/Issuing Agent
at: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Services Division, (312)
407-1761, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇.
For record keeping purposes, one copy of
each such document, as so filed, shall
also be mailed or telecopied to Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ at ▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇, Esq.
In the event that at the time the
solicitation of offers to purchase from
the Company is suspended (other than to
establish or change interest rates,
maturities, prices or other similar
variable terms with respect to the Notes)
there shall be any offers to purchase
Notes that have been accepted by the
Company which have not been settled, the
Company will promptly advise the Agents
and the Issuing Agent whether such offers
may be settled and whether copies of the
Prospectus as theretofore amended and/or
Supplemented as in effect at the time of
the suspension may be delivered in
connection with the settlement of such
offers. The Company will have the sole
responsibility for such decision and for
any arrangements which may be made in the
event that the Company determines that
such offers may not be settled or that
copies of such Prospectus may not be so
delivered.
Delivery of Prospectus
and applicable
Pricing Supplement: A copy of the most recent Prospectus and
applicable Pricing Supplement must
accompany or precede the earlier of (a)
the written confirmation of a sale sent to
an investor or other purchaser or its agent
and (b) the delivery of Notes to an
investor or other purchaser or its agent.
Authenticity of
Signatures: The Agents will have no obligations or
liability to the Company, the Trustee or
the Issuing Agent in respect of the
authenticity of the signature of any
officer, employee or agent of the Company,
the Trustee or the Issuing Agent on any
Note.
Documents Incorporated
by Reference: The Company shall supply the
Agents with an adequate supply of all
documents incorporate by reference in the
Registration Statement.
Business Day: Unless otherwise provided in the
Notes,
"Business Day" as used herein, means a day
that in The City of New York is not a day
on which banking institutions are
authorized or required by law or
regulation to close and, with respect to
Notes as to which LIBOR is an applicable
Interest Rate Basis, is also a London
Business Day. "London Business Day" means
any day (a) if the Index Currency is other
than the European Currency Unit ("ECU"), on
which dealings in deposits in such Index
Currency are transacted in the London
interbank market or (b) if the Index
Currency is the ECU, that is not
designated as an ECU Non-Settlement Day by
the ECU Banking Association in Paris or
otherwise generally regarded in the ECU
interbank market as a day on which
payments in ECUs will not be made.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in
book-entry form for eligibility in the book-entry system maintained by DTC,
the Issuing Agent will perform the custodial, document control and
administrative functions described below, in accordance with its respective
obligations under a Letter of Representation from the Company and the Issuing
Agent to DTC, dated October 19, 1995, and a Certificate Agreement, dated May
26, 1989, between the Issuing Agent and DTC, as amended (the "Certificate
Agreement"), and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry
form (each, a "Book-Entry Note") having
the same Original Issue Date, interest
rate, Day Count Convention, redemption
and/or repayment terms, if any, and Stated
Maturity Date (collectively, the "Fixed
Rate Terms") will be represented initially
by a single global security in fully
registered form without coupons (a
"Registered Global Security"); and all
Floating Rate Notes issued in book-entry
form having the same Original Issue Date,
formula for the calculation of interest
(which may include terms specifying
whether such Floating Rate Note is a
Regular Floating Rate Note, Floating
Rate/Fixed Rate Note (and which must
specify the Fixed Rate Commencement Date),
Inverse Floating Rate Note (and which must
specify the Fixed Interest Rate)) and
specifying the Interest Rate Basis, which
may be the CD Rate, the Commercial Paper
Rate, the Eleventh District Cost of Funds
Rate, the Federal Funds Rate, LIBOR, the
Prime Rate, the CMT Rate or the Treasury
Rate or any other rate set forth by the
Company, Initial Interest Rate, Index
Maturity, Spread and/or Spread Multiplier,
if any, Minimum Interest Rate, if any,
Maximum Interest Rate, if any, redemption
and/or repayment terms, if any, and Stated
Maturity Date (collectively, "Floating Rate
Terms") will be represented initially by a
single Book-Entry Note; provided, however,
that in each case no single Book-Entry
Note will exceed $200,000,000 principal
amount. See "Denominations" below.
For other variable terms with respect to
the Fixed Rate Notes and Floating Rate
Notes, see the Prospectus and the
applicable Pricing Supplement.
Except as provided in the Indenture, no
owner of a beneficial interest in a
Book-Entry Note shall be entitled to
receive any Note issued in definitive form
with respect to such beneficial interest.
Identification: The Company has arranged with
the CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of one series
of CUSIP numbers, which series consists of
approximately 900 CUSIP numbers which have
been reserved for and relating to
Book-Entry Notes and the Company has
delivered to each of the Trustee, the
Issuing Agent and DTC's Underwriting
Department such list of such CUSIP numbers.
The Company will assign CUSIP numbers to
Book-Entry Notes as described below under
Settlement Procedure B. DTC will notify
the CUSIP Service Bureau periodically of
the CUSIP numbers that the Company has
assigned to Book-Entry Notes. The Trustee
or the Issuing Agent, as the case may be,
will notify the Company at any time when
fewer than 100 of the reserved CUSIP
numbers remain unassigned to Book-Entry
Notes, and, if it deems necessary, the
Company will reserve and obtain additional
CUSIP numbers for assignment to Book-Entry
Notes. Upon obtaining such additional
CUSIP numbers, the Company will deliver a
list of such additional numbers to the
Trustee, the Issuing Agent and DTC's
Underwriting Department. Book-Entry Notes
having an aggregate principal amount in
excess of $200,000,000 and otherwise
required to be represented by the same
Registered Global Security will instead be
represented by an additional Registered
Global Security which shall be assigned the
same CUSIP number.
Registration: Unless otherwise specified by
DTC, each Book-Entry Note will be
registered in the name of Cede & Co., as
nominee for DTC, on the register
maintained by the Issuing Agent under the
Indenture. The beneficial owner of a
beneficial interest in a Book-Entry Note
(or one or more indirect participants in
DTC designated by such owner) will
designate one or more participants in DTC
(with respect to such Note issued in
book-entry form, the "Participants") to
act as agent for such beneficial owner in
connection with the book-entry system
maintained by DTC, and DTC will record in
book-entry form, in accordance with
instructions provided by such
Participants, a credit balance with
respect to such Note issued in book-entry
form in the account of such Participants.
The ownership interest of such beneficial
owner in such Note issued in book-entry
form will be recorded through the records
of such Participants or through the
separate records of such Participants and
one or more indirect participants in DTC.
Transfers: Transfers of beneficial ownership
interests in a Book-Entry Note will be
accomplished by book entries made by DTC
and, in turn, by Participants (and in
certain cases, one or more indirect
participants in DTC) acting on behalf of
beneficial transferors and transferee of
such Book-Entry Note.
Exchanges: The Issuing Agent may deliver to DTC and
the CUSIP Service Bureau at any time a
written notice specifying (a) the CUSIP
numbers of two or more Book-Entry Notes
outstanding on such date that represent
Book-Entry Notes having the same Fixed
Rate Terms or Floating Rate Terms, as the
case may be (other than Original Issue
Dates), and for which interest has been
paid to the same date; a date, occurring at
least 30 days after such written notice is
delivered and at least 30 days before the
next Interest Payment Date for the related
Notes issued in book-entry form, on which
such Book-Entry Notes shall be exchanged
for a single replacement Book-Entry Note;
and (c) a new CUSIP number, obtained from
the Company, to be assigned to such
replacement Book-Entry Note. Upon receipt
of such a notice, DTC will send to its
Participants (including the Issuing Agent)
a written reorganization notice to the
effect that such exchange will occur on
such date. Prior to the specified
exchange date, the Issuing Agent will
deliver to the CUSIP Service Bureau
written notice setting forth such exchange
date and the new CUSIP number and stating
that, as of such exchange date, the CUSIP
numbers of the Book-Entry Notes to be
exchanged will no longer be valid. On the
specified exchange date, the Issuing Agent
will exchange such Book-Entry Notes for a
single Book-Entry Note bearing the new
CUSIP number and the CUSIP numbers of the
exchanged Book-Entry Notes will, in
accordance with CUSIP Service Bureau
procedures, be cancelled and not
immediately reassigned. Notwithstanding
the foregoing, if the Book-Entry Notes to
be exchanged exceed $200,000,000 in
aggregate principal amount, one
replacement Book-Entry Note will be
authenticated and issued to represent each
$200,000,000 of principal amount of the
exchanged Book-Entry Notes and an
additional Book-Entry Note or Notes will
be authenticated and issued to represent
any remaining principal amount of such
Book-Entry Notes (see "Denominations"
below).
Denominations: All Notes issued in book-entry form will
be denominated in U.S. dollars. Notes
issued in book-entry form will be issued
in denominations of $1,000 and integral
multiples of $1,000 in excess thereof.
Book-Entry Notes will be denominated in
principal amounts not in excess of
$200,000,000. If one or more Notes issued
in book-entry form having an aggregate
principal amount in excess of $200,000,000
would, but for the preceding sentence, be
represented by a single Book-Entry Note,
then one Book-Entry Note will be issued to
represent each $200,000,000 principal
amount of such Note or Notes issued in
book-entry form and an additional
Book-Entry Note or Notes will be issued to
represent any remaining principal amount
of such Note or Notes issued in book-entry
form. In such a case, each of the
Book-Entry Notes representing such Note
or Notes issued in book-entry form shall
be assigned the same CUSIP number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after
each record date, the Issuing Agent will
deliver to the Company and DTC a written
notice specifying by CUSIP number the
amount of interest to be paid on each
Book-Entry Note on the following Interest
Payment Date (other than an Interest
Payment Date coinciding with Maturity) and
the total of such amounts. DTC will
confirm the amount payable on each
Book-Entry Note on such Interest Payment
Date by reference to the daily bond
reports published by Standard & Poor's
Corporation. On such Interest Payment
Date, the Company will pay to the Issuing
Agent in immediately available funds an
amount sufficient to pay the interest then
due and owing, and upon receipt of such
funds from the Company, the Issuing Agent
in turn will pay to DTC, such total amount
of interest due (other than at Maturity),
at the times and in the manner set forth
below under "Manner of Payment."
Notice of Interest Payments and Record
Dates. Promptly after each Interest
Determination Date for Floating Rate Notes
issued in book-entry form, the Issuing
Agent will notify each of ▇▇▇▇▇'▇ Investors
Services, Inc. and Standard & Poor's
Corporation of the interest rates
determined on such Interest Determination
Date.
Payments at Maturity. On or about the
first Business Day of each month, the
Issuing Agent will deliver to the Company
and DTC a written list of principal,
interest and premium, if any, to be paid on
each Book-Entry Note maturing either at
the Stated Maturity Date, on a redemption
date in, or for which an Option to Elect
Repayment has been received with respect
to, the following month. The Issuing
Agent, the Company and DTC will confirm
the amounts of such principal, premium, if
any, and interest payments with respect to
a Book-Entry Note on or about the fifth
Business Day preceding the Maturity of
such Book-Entry Note. At such Maturity,
the Company will pay to the Issuing Agent
in immediately available funds an amount
sufficient to make such Maturity payment,
and upon receipt of such funds the Issuing
Agent in turn will pay to DTC, the
principal amount of such Note, together
with interest and premium, if any, due at
such Maturity, at the times and in the
manner set forth below under "Manner of
Payment". Promptly after payment to DTC
of the principal, interest and premium, if
any, due at the Maturity of such
Book-Entry Note, the Issuing Agent will
cancel such Book-Entry Note and deliver it
to the Company with an appropriate debit
advice. On the first Business Day of each
month, the Issuing Agent will deliver to
the Company a written statement indicating
the total principal amount of outstanding
Book-Entry Notes as of the close of
business on the immediately preceding
Business Day.
Manner of Payment. The total amount of
any principal, premium, if any, and
interest due on Book-Entry Notes on any
Interest Payment Date or at Maturity shall
be paid by the Company to the Issuing Agent
in funds available for use by the Issuing
Agent no later than 1:00 P.M., New York
City time, on such date. The Company will
make such payment on such Book-Entry Notes
to an account specified by the Issuing
Agent. Upon receipt of such funds, the
Issuing Agent will pay by separate wire
transfer (using Fedwire message entry
instructions in a form previously
specified by DTC) to an account at the
Federal Reserve Bank of New York previously
specified by DTC, in funds available for
immediate use by DTC, each payment of
interest, principal and premium, if any,
due on a Book-Entry Note on such date.
Thereafter on such date, DTC will pay, in
accordance with its SDFS operating
procedures then in effect, such amounts in
funds available for immediate use to the
respective Participants in whose names such
Notes are recorded in the book-entry
system maintained by DTC. Neither the
Company, the Issuing Agent nor the Trustee
shall have any responsibility or liability
for the payment by DTC of the principal
of, premium, if any, or interest on, the
Book-Entry Notes to such Participants.
Withholding Taxes. The amount of any
taxes required under applicable law to be
withheld from any interest payment on a
Note will be determined and withheld by
the Participant, indirect participant in
DTC or other Person responsible for
forwarding payments and materials directly
to the beneficial owner of such Note.
Settlement
Procedures: Settlement Procedures with regard to each
Note in book-entry form purchased by each
Agent, as principal, or sold by each
Agent, as agent of the Company, will be as
follows:
A. The Offering Agent will advise the
Company by telephone, confirmed by
facsimile, of the following Settlement
information:
l. Principal amount of the
Note.
2. (a) Fixed Rate Notes:
(i) Interest Rate
(ii) Interest
Payment Dates
(iii) Day Count
Convention
(A) 30/360
(B) Actual/
360
(C) Actual/
Actual (and
applicable
periods)
(b) Floating Rate Notes:
(i) specify if:
(A) Regular
Floating Rate
(B) Floating
Rate/Fixed Rate
(Fixed Rate
Commencement Date)
(C) Inverse
Floating Rate
(Fixed Interest
Rate)
(ii) Interest Rate
Basis or Bases
(and if CMT Rate
Notes, the
designated CMT
Telerate page and
the designated CMT
Maturity Index)
(iii) Initial Interest
Rate
(iv) Spread and/or
Spread Multi-
plier, if any
(v) Initial Interest
Reset Date and
Interest Reset
Dates
(vi) Interest Rate
Reset Period
(vii) Interest
Payment Dates
(viii) Interest
Payment Period
(ix) Record Dates
(x) Index Maturity
(xi) Maximum and
Minimum Interest
Rates, if any
(xii) Day Count
Convention
(A) Actual/360
(B) Actual/
Actual (and
applicable
periods)
(xiii) Calculation
Agent
3. Price to public, if any, of the
Note (or whether the Note is
being offered at varying prices
relating to prevailing market
prices at time of resale as
determined by the Offering Agent).
4. Trade Date.
5. Settlement Date (Original
Issue Date).
6. Stated Maturity Date.
7. Redemption provisions, if
any, including Initial
Redemption Date, Initial
Redemption Percentage and
Annual Redemption Percentage
Reduction.
8. Optional Repayment Date(s).
9. Net proceeds to the Company.
10. The Offering Agent's commission
or underwriting discount.
11. Whether such Notes are being sold
to the Offering Agent as
principal or to an investor or
other purchaser through the
Offering Agent acting as agent
for the Company.
12. Whether such Note is being issued
with Original Issue Discount and
the terms thereof.
13. Such other information specified
with respect to the Notes
(whether by Addendum or
otherwise).
B. The Company will assign a CUSIP number
to the Book-Entry Note representing
such Note and then advise the Issuing
Agent by facsimile transmission or other
electronic transmission of the above
settlement information received from
the Offering Agent, such CUSIP number
and the name of the Offering Agent.
C. The Issuing Agent will communicate to
DTC and the Offering Agent through
DTC's Participant Terminal System, a
pending deposit message specifying the
following settlement information:
l. The information set forth in the
Settlement Procedure A.
2. Identification numbers of the
participant accounts maintained
by DTC on behalf of the Issuing
Agent and the Offering Agent.
3. Identification of the Book-Entry
Note as a Fixed Rate Book-Entry
Note or Floating Rate Book-Entry
Note.
4. Initial Interest Payment Date for
such Note, number of days by
which such date succeeds the
related record date for DTC
purposes (or, in the case of
Floating Rate Notes which reset
daily or weekly, the date five
calendar days preceding the
Interest Payment Date) and, if
then calculable, the amount of
interest payable on such Interest
Payment Date (which amount shall
have been confirmed by the Issuing
Agent).
5. CUSIP number of the Book-Entry
Note representing such Note.
6. Whether such Book-Entry Note
represents any other Notes issued
or to be issued in book-entry
form.
DTC will arrange for each pending deposit
message described above to be transmitted
to Standard & Poor's Corporation, which
will use the information in the message to
include certain terms of the related
Book-Entry Note in the appropriate daily
bond report published by Standard & Poor's
Corporation.
D. The Issuing Agent complete and
authenticate the Book-Entry Note
representing such Note.
E. DTC will credit such Note to the
participant account of the Issuing
Agent maintained by DTC.
F. The Issuing Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to
debit such Note to the Issuing Agent's
participant account and credit such
Note to the participant account of the
Offering Agent maintained by DTC and
(ii) to debit the settlement account of
the Offering Agent and credit the
settlement account of the Issuing Agent
maintained by DTC, in an amount equal
to the price of such Note less such
Offering Agent's discount or
underwriting commission, as applicable.
Any entry of such a deliver order shall
be deemed to constitute a
representation and warranty by the
Issuing Agent to DTC that (i) the
Book-Entry Note representing such Note
has been issued and authenticated and
(ii) the Issuing Agent is holding such
Book-Entry Note pursuant to the
Certificate Agreement.
G. In the case of Notes sold through an
Offering Agent, as agent, the Offering
Agent will enter an SDFS deliver order
through DTC's Participant Terminal
System instructing DTC (i) to debit
such Note to the Offering Agent's
participant account and credit such
Note to the participant account of the
Participants maintained by DTC and (ii)
to debit the settlement accounts of
such participants and credit the
settlement account of the Offering Agent
maintained by DTC in an amount equal to
the initial public offering price of
such Note.
H. Transfers of funds in accordance with
SDFS deliver orders described in
Settlement Procedures F and G will be
settled in accordance with SDFS
operating procedures in effect on the
Settlement Date.
I. Upon receipt, the Issuing Agent will
pay the Company, by wire transfer of
immediately available funds to an
account specified by the Company to the
Issuing Agent from time to time, in the
amount transferred to the Issuing Agent
in accordance with Settlement Procedure
F.
J. The Issuing Agent will send a copy of
the Book-Entry Note by first class mail
to the Company together with a
statement setting forth the principal
amount of Notes outstanding as of the
related Settlement Date after giving
effect to such transaction and all
other offers to purchase Notes of which
the Company has advised the Issuing
Agent but which have not yet been
settled.
K. If the Note was sold through the
Offering Agent, as agent, the Offering
Agent will confirm the purchase of such
Note to the investor or other purchaser
either by transmitting to the
Participant with respect to such Note a
confirmation order through DTC's
Participant Terminal System or by
mailing a written confirmation to such
investor or other purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by
the Company, Settlement Procedures "A"
through "K" set forth above shall be
completed as soon as possible but not
later than the respective time (New York
City time) set forth below:
Settlement
Procedure Time
A 11:00 A.M. on
the trade date
B As soon as prac-
ticable follow-
ing the trade,
but in no event
later than 12:00
noon on the
Second Business
Day immediately
preceding the
Settlement Date
C As soon as prac-
ticable follow
ing the trade,
but in no event
later than 2:00
P.M. on the
second Business
Day immediately
preceding the
Settlement Date
D 9:00 A.M. on
Settlement Date
E 10:00 A.M. on
Settlement Date
F-G No later than
2:00 P.M. on
Settlement Date
H 4:45 P.M. on
Settlement Date
I-J 5:00 P.M. on
Settlement Date
If a sale is to be settled more than one
Business Day after the trade date,
Settlement Procedures A, B, and C may, if
necessary, be completed at any time prior
to the specified times on the first
Business Day after such trade date.
Settlement Procedure H is subject to
extension in accordance with any extension
of Fedwire closing deadlines and in the
other events specified in the SDFS
operating procedures in effect on the
Settlement Date.
If settlement of a Note issued in
book-entry form is rescheduled or
canceled, the Issuing Agent will deliver
to DTC, through DTC's Participant Terminal
System, a cancellation message to such
effect by no later than 2:00 P.M., New
York City time, on the Business Day
immediately preceding the scheduled
Settlement Date.
Failure to Settle: If the Issuing Agent fails to
enter an SDFS deliver order with respect
to a Book-Entry Note issued in book-entry
form pursuant to Settlement Procedure F,
the Issuing Agent may deliver to DTC,
through DTC's participant Terminal System,
as soon as practicable a withdrawal
message instructing DTC to debit such Note
to the participant account of the Issuing
Agent maintained at DTC. DTC will process
the withdrawal message, provided that such
participant account contains a principal
amount of the Book-Entry Note representing
such Note that is at least equal to the
principal amount to be debited. If
withdrawal messages are processed with
respect to all the Notes represented by a
Book-Entry Note, the Issuing Agent will
mark such Book-Entry Note "canceled," make
appropriate entries in its records and
send certification of destruction of such
canceled Book-Entry Note to the Company.
The CUSIP number assigned to such
Book-Entry Note shall, in accordance with
CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
If withdrawal messages are processed with
respect to a portion of the Notes
represented by a Book-Entry Note, the
Issuing Agent will exchange such
Book-Entry Note for two Book-Entry Notes,
one of which shall represent the Book-Entry
Notes for which withdrawal messages are
processed and shall be canceled
immediately after issuance, and the other
of which shall represent the other Notes
previously represented by the surrendered
Book-Entry Note and shall bear the CUSIP
number of the surrendered Book-Entry Note.
In the case of any Note sold through the
Offering Agent, as agent, if the purchase
price for any Book-Entry Note is not timely
paid to the Participants with respect to
such Note by the beneficial investor or
other purchaser thereof (or a person,
including an indirect participant in DTC,
acting on behalf of such investor or other
purchaser), such Participants and, in
turn, the related Offering Agent may enter
SDFS deliver orders through DTC's
Participant Terminal System reversing the
orders entered pursuant to settlement
Procedures F and G, respectively.
Thereafter, the Issuing Agent will deliver
the withdrawal message and take the
related actions described in the preceding
paragraph. If such failure shall have
occurred for any reason other than default
by the applicable Offering Agent to
perform its obligations hereunder or under
the Distribution Agreement, the Company
will reimburse such Offering Agent on an
equitable basis for its reasonable loss of
the use of funds during the period when the
funds were credited to the account of the
Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating
procedures then in effect. In the event
of a failure to settle with respect to a
Note that was to have been represented by
a Book-Entry Note also representing other
Notes, the Issuing Agent will provide, in
accordance with Settlement Procedure D, for
the authentication and issuance of a
Book-Entry Note representing such
remaining Notes and will make appropriate
entries in its records.
PART III: PROCEDURES FOR NOTES ISSUED
IN DEFINITIVE FORM
Denominations: The Definitive Notes will be issued
in denominations of $1,000 and integral
multiples thereof, unless otherwise
specified in the applicable Pricing
Supplement.
Payments of Principal
and Interest: Upon presentment and delivery of the
Definitive Note, the Issuing Agent upon
receipt of immediately available funds
from the Company will pay the principal
amount of each Definitive Note at Maturity
and the final installment of interest in
immediately available funds. All interest
payments on a Definitive Note, other than
interest due at Maturity, will be made at
the office or agency of the Company
maintained by the Company for such purpose
in the Borough of Manhattan, The City of
New York, or, at the option of the
Company, may be made by check mailed to
the address of the person entitled thereto
as such address shall appear in the
registry books of the Company. However,
holders of $10,000,000 or more in
aggregate principal amount of Definitive
Notes having the same Interest Payment
Dates will, at the option of the Company,
be entitled to receive payments of
interest, other than at Maturity, by wire
transfer of immediately available funds if
appropriate wire transfer instructions
have been received in writing by the
Issuing Agent not less than 15 days prior
to the applicable Interest Payment Date.
Such wire instructions, upon receipt by
the Trustee, shall remain in effect until
revoked by such Holder.
The Issuing Agent will provide monthly to
the Company a list of the principal,
premium, if any, and interest in each
currency to be paid on Definitive Notes
maturing in the next succeeding month. The
Issuing Agent will be responsible for
withholding taxes on interest paid as
required by applicable law, but shall be
relieved from any such responsibility if
it acts in good faith and in reliance upon
an opinion of counsel.
Definitive Notes presented to the Issuing
Agent at Maturity for payment will be
canceled by the Issuing Agent. All
canceled Definitive Notes held by the
Issuing Agent shall be destroyed, and the
Issuing Agent shall furnish to the Company
a certificate with respect to such
destruction.
Settlement
Procedures: Settlement Procedures with regard
to each Definitive Note purchased by any
Agent, as principal, or through any Agent,
as agent, shall be as follows:
A. The Offering Agent will advise the
Company by telephone of the following
Settlement information with regard to
each Note:
1. Exact name in which the Definitive
Note(s) is to be registered (the
"Registered owner")
2. Exact address or addresses of the
Registered Owner for delivery,
notices and payments of principal
and interest.
3. Taxpayer identification number of
the Registered Owner.
4. Principal amount of the Definitive
Note.
5. Denomination of the Definitive Note.
6. (a) Fixed Rate Notes:
(i) Interest Rate
(ii) Interest
Payment
Dates
(iii)Day Count
Convention
(A) 30/360
(B) Actual/360
(C) Actual/
Actual (and
applicable
periods)
(b) Floating Rate Notes:
(i) specify if:
(A) Regular
Floating Rate
(B) Floating
Rate/Fixed Rate
(Fixed Rate
Commencement Date)
(C) Inverse Floating
Rate (Fixed Interest
Rate)
(ii) Interest Rate
Basis or Bases
(and if CMT Rate
Notes, the design-
ated CMT Telerate
page and the desig-
nated CMT Maturity
Index)
(iii) Initial Interest Rate
(iv) Spread and/or
Spread Multiplier, if any
(iv) Initial Interest Re
set Date and Interest
Reset Dates
(vi) Interest Rate
Reset Period
(vii) Interest
Payment Dates
(viii)Interest
Payment Period
(ix) Regular Record Dates
(x) Index Maturity
(xi) Maximum and
Minimum Interest
Rates, if any
(xii) Day Count
Convention
(A) Actual/360
(B) Actual/
Actual (and
applicable
periods)
(xiii)Calculation
Agent
7. Price to public of the Definitive
Note (or whether the, Note is
being offered at varying prices
relating to prevailing market
prices at time of resale as
determined by the Offering Agent).
8. Trade Date.
9. Settlement Date (Original Issue
Date).
10. Stated Maturity Date.
11. Redemption provisions, if any,
including Initial Redemption
Date, Initial Redemption
Percentage and Annual Redemption
Percentage Reduction.
12. Optional Repayment Date(s)
13. Net proceeds to the Company.
14. The Offering Agent's commission
or underwriting discount.
15. Whether such Notes are being sold
to the Offering Agent as
principal or to an investor or
other purchaser through the
Offering Agent acting as agent
for the Company.
16. Whether such Note is being issued
with Original Issue Discount and
the terms thereof.
17. Such other information specified
with respect to the Notes
(whether by Addendum or
otherwise).
B. After receiving such settlement
information from the Offering Agent,
the Company will advise the Issuing
Agent of the above settlement
information by facsimile transmission
confirmed by telephone. The Company
will prepare a Pricing Supplement to
the Prospectus and deliver copies to
the Agent and will cause the Issuing
Agent to issue, authenticate and
deliver Notes.
C. The Issuing Agent will complete the
Definitive Note in the form approved by
the Company, the Offering Agent and the
Issuing Agent, and will make three
copies thereof (herein called "Stub l",
"Stub 2" and "Stub 3"):
l. Definitive Note with the Offering
Agent's confirmation, if traded
on a principal basis, or the
Offering Agent's customer
confirmation, if traded on an
agency basis.
2. Stub l for Issuing Agent.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Company.
D. With respect to each trade, the Issuing
Agent will deliver the Definitive Notes
and Stub 2 thereof to the Offering
Agent at the following applicable
address: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated, Monkey Market
Clearance - MTNs, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ 10080, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇,
(▇▇▇) ▇▇▇-▇▇▇▇, telecopier (212)
602-6332; Chase Securities, Inc., ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ 10081, Attention:
Medium-Term Note Desk, (▇▇▇) ▇▇▇-▇▇▇▇,
telecopier (▇▇▇) ▇▇▇-▇▇▇▇; ▇▇▇▇▇▇▇,
Sachs & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Registration Department,
(▇▇▇) ▇▇▇-▇▇▇▇, telecopier (212) 902-
3000; ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ 10260, Attention: ▇▇▇▇ ▇▇▇▇▇,
(▇▇▇) ▇▇▇-▇▇▇▇, te1ecopier (212)
648-5098; and PaineWebber Incorporated,
Fixed Income Capital Markets, 11th
Floor, New York, New York 10019,
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇, (212)
713-2960, telecopier (▇▇▇) ▇▇▇-▇▇▇▇.
The Issuing Agent will keep Stub l.
The Offering Agent will acknowledge
receipt of the Definitive Note through a
broker's receipt and will keep Stub 2.
Delivery of the Definitive Note will be
made only against such acknowledgement
of receipt. Upon determination that
the Definitive Note has been
authorized, delivered and completed as
aforementioned, the Offering Agent will
wire the net proceeds of the Definitive
Note after deduction of its applicable
commission to the Company pursuant to
standard wire instructions given by the
Company.
E. In the case of Notes sold through the
Offering Agent, as agent, the Offering
Agent will deliver the Definitive Note
(with confirmations), as well as a copy
of the Prospectus and any applicable
Pricing Supplement or Supplements
received from the Issuing Agent to the
purchaser against payment in
immediately available funds.
F. The Issuing Agent will send Stub 3 to
the Company.
Settlement
Procedures
Timetable: For offers to purchase Definitive Notes
accepted by the Company, Settlement
Procedures "A" through "F" set forth above
shall be completed as soon as possible but
not later than the respective times (New
York City time) set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the
trade date
B 3:00 P.M. on Busi-
ness Day prior to
Settlement Date
C-D 2:15 P.M. on Set-
tlement Date
E 3:00 P.M. on Set
tlement Date
F 5:00 P.M. on Set
tlement Date
Failure to Settle: In the case of Notes sold through
the Offering Agent, as agent, if an
investor or other purchaser of a
Definitive Note from the Company shall
either fail to accept delivery of or make
payment for a Definitive Note on the date
fixed for settlement, the Offering Agent
will forthwith notify the Issuing Agent
and the Company by telephone, confirmed in
writing, and return the Definitive Note to
the Issuing Agent.
The Issuing Agent, upon receipt of the
Definitive Note from the Offering Agent,
will immediately advise the Company and
the Company will promptly arrange to
credit the account of the Offering Agent
in an amount of immediately available
funds equal to the amount previously paid
to the Company by such Offering Agent in
settlement for the Definitive Note. Such
credits will be made on the Settlement Date
if possible, and in any event not later
than the Business Day following the
Settlement Date; provided that the Company
has received notice on the same day. If
such failure shall have occurred for any
reason other than failure by such Offering
Agent to perform its obligations hereunder
or under the Distribution Agreement, the
Company will reimburse such Offering Agent
on an equitable basis for its reasonable
loss of the use of funds during the period
when the funds were credited to the
account of the Company. Immediately upon
receipt of the Definitive Note in respect
of which the failure occurred, the Issuing
Agent will cancel and destroy the
Definitive Note, make appropriate entries
in its records to reflect the fact that
the Note was never issued, and accordingly
notify in writing the Company.