Exhibit 1.3
FORM OF PREFERRED STOCK UNDERWRITING AGREEMENT
___________, 199_
SunAmerica Capital Trust [_]
c/o SunAmerica Inc.
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SunAmerica Inc.
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Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
SunAmerica Capital Trust [_] (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Section 3801
et seq.), proposes to issue and sell [___] shares of its [_____]%
[________________] Preferred Securities (the "Firm Securities") [and not more
than [___] shares of its [_____]% [________________] Preferred Securities (the
"Additional Securities"), if any, to the extent we shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such Additional
Securities on the terms described below.] The Firm Securities [and the
Additional Securities] are hereinafter collectively referred to herein as the
"Preferred Securities".
It is understood that substantially contemporaneously with the
offering and sale of the Firm Securities to the Underwriters contemplated
hereby, (i) the Trust, its trustees (the "Trustees") and the Company shall
take all necessary action to adopt an Amended and Restated Declaration of
Trust in substantially the form of the Form of Amended and Restated
Declaration of Trust attached as Exhibit 4.10 to the Registration Statement
referred to below, (as so amended and restated, the "Declaration") pursuant to
which the Trust shall (x) issue and sell the Preferred Securities to the
Underwriters pursuant hereto and (y) issue [_] shares of its [___]% [____]
Common Securities [(and up to an additional [_] shares of such securities in
connection with the issuance and sale of the Additional Securities)] (the
"Common Securities" and, together with the Preferred Securities, the "Trust
Securities") to the Company, in each case with such rights and obligations as
shall be set forth in such Declaration, (ii) the Company and The First
National Bank of Chicago, as Trustee, acting pursuant to an Indenture dated as
of March 15, 1995, shall enter into a Supplemental Indenture in substantially
the form of the Form of Supplemental Indenture attached as Exhibit 4.12 to the
Registration Statement referred to below (the "Supplemental Indenture", and
the Indenture, as so supplemented, the "Indenture") providing for the issuance
of $[____________] in aggregate principal amount of the Company's Junior
Subordinated Debentures, Series [_], due 20[__] (the "Debentures"), (iii) the
Company shall deposit such Debentures in the Trust in conjunction with the
consummation of the sale of the Preferred Securities to the Underwriters
contemplated hereby and (iv) the Company and The Bank of New York, as
Guarantee Trustee, shall enter into a Guarantee Agreement in substantially the
form of the Form of the Preferred Securities Guarantee attached as Exhibit
4.14 of the Registration Statement referred to below (the "Guarantee") for the
benefit of holders from time to time of the Preferred Securities.
Subject to the terms and conditions set forth or incorporated
by reference herein, the Trust hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the respective number of Firm
Securities set forth below opposite their names at a purchase price per share
of $______:
Number of shares of
Name Firm Securities
---- -------------------
[Insert syndicate list]
Total . . . . . .
===========
[On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Trust agrees
to sell to the Underwriters the Additional Securities, and the Underwriters
shall have a one-time right to purchase, severally and not jointly, all or a
part of the Additional Securities at the purchase price per share listed
above. Additional Securities may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Securities. If any Additional Securities are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Securities (subject to such adjustments to eliminate fractional
securities as you may determine) that bears the same proportion to the total
number of Additional Securities to be purchased as the amount of Firm
Securities set forth above opposite the name of such Underwriter bears to the
total amount of Firm Securities.]
The Underwriters will pay for the Firm Securities upon delivery
thereof at [office] at ______ a.m. (New York time) on ___________, 199_, or at
such other time, not later than 5:00 p.m. (New York time) on __________, 199_,
as shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the "Closing Date".
[The Underwriters will pay for any Additional Securities upon
delivery thereof at [office] at [_____]a.m. (New York time), on such date
(which may be the same as the Closing Date but shall in no event be earlier
than the Closing Date nor later than the date ten business days after the
giving of the notice hereinafter referred to) as shall be designated in a
written notice from the Manager to the Company of our determination, on behalf
of the Underwriters, to purchase an aggregate number, specified in said notice,
of Additional Securities, as shall be designated in writing by us. Such
notice of determination to exercise the option to purchase Additional
Securities and of the designated Option Closing Date (defined below) may be
given by the Manager at any time within 30 days after the date of this
Agreement. The designated time and date of such payment and delivery are
hereinafter referred to as the "Option Closing Date".]
The Preferred Securities shall have the terms set forth in the
Prospectus dated _________ __, 199_, and the Prospectus Supplement dated
________ __, 199_, including the following:
Terms of Preferred Securities
Aggregate Number of
Firm Securities:
[Aggregate Number of
Additional Securities:]
Purchase Price:
Closing Date:
[Option Closing Date:]
Form:
Distribution, Liquidation [Refer to Exhibit 4.10
and Redemption Provisions: of the Registration
Statement]
Guarantee Provisions: [Refer to Exhibit 4.14 of the
Registration Statement]
[Lock-Up Securities:]
[Lock-Up Period:]
[Other Terms:]
[[Each of the Trust and] The Company hereby agrees that,
without our prior written consent, it will not, directly or indirectly, offer,
sell, contract to sell or grant any option to purchase or otherwise dispose of
any shares of the securities listed above as "Lock-Up Securities", or any
securities convertible into or exchangeable for Lock-Up Securities, for the
period(s) listed above as the "Lock-Up Period" in respect of such Lock-Up
Securities; provided, however, that such restriction shall not affect the
ability of the Trust, the Company or its subsidiaries to take any such action
(i) as a consequence of obligations under securities outstanding prior to the
date hereof, (ii) in connection with any employee benefit or incentive plans
of the Company or its subsidiaries or (iii) in connection with the offering of
the Preferred Securities contemplated hereby.]
All provisions contained in the document entitled SunAmerica
Capital Trusts and SunAmerica Inc. Underwriting Agreement Standard Provisions
(Preferred Securities) dated September __, 1995, a copy of which is attached
hereto, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein, except that (i) if any term defined in such
document is otherwise defined herein, the definition set forth herein shall
control, (ii) all references in such document to, and all provisions in such
document relating to, a type of agreement that has not been entered into in
connection with the transactions contemplated hereby shall not be deemed to
be a part of this Agreement and (iii) all references to "Additional
Securities" and "Option Closing Date" and all provisions related to the grant
of an over-allotment option to Underwriters hereunder shall not be deemed to
be a part of this Agreement in the event that an over-allotment option is not
so granted hereby.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
____________________________
____________________________
____________________________
Acting severally on behalf of themselves and the
several Underwriters named herein
By: _______________________
_______________________
By: _______________________
Name:
Title:
Accepted:
SUNAMERICA CAPITAL TRUST [_]
a Delaware statutory business trust
By: SUNAMERICA, INC.,
Sponsor
By: __________________________
Name:
Title:
SUNAMERICA INC.
By: ________________________
Name:
Title:
SUNAMERICA CAPITAL TRUSTS AND
SUNAMERICA INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(PREFERRED SECURITIES)
September __, 1995
From time to time SunAmerica Inc., a Maryland corporation
(the "Company") and one or more statutory business trusts entitled
"SunAmerica Capital Trust [__]" designated therein (the "Trust"), may enter
into one or more underwriting agreements that provide for the sale of
designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in
any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Trust and the Company have filed with the Securities and
Exchange Commission (the "Commission") a registration statement, including
a prospectus, relating to the Preferred Securities, the Debentures and the
Guarantee and have filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating
to the Preferred Securities, the Debentures and the Guarantee pursuant to
Rule 424 under the Securities Act of 1933, as amended (the "Securities
Act"). The term "Registration Statement" means such registration
statement, including the exhibits thereto, as amended to the date of this
Agreement. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating
to the Preferred Securities, the Debentures and the Guarantee, together
with the Basic Prospectus. As used herein, the terms "Basic Prospectus,"
"Prospectus" and "preliminary prospectus" shall include in each case the
documents, if any, incorporated by reference therein. The terms
"supplement" and "amendment" or "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Trust or the
Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act").
1. Representations and Warranties. The Company represents
and warrants to each of the Underwriters that:
(a) The Registration Statement (including the most recent
post-effective amendment thereto, if any) has been declared effective by
the Commission; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose
are pending before or threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective,
did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any 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, and the Registration Statement,
since the later of the date it became effective and the date of the most
recent post-effective amendment, if any, will not fail to reflect any facts
or events which individually or in the aggregate represent a fundamental
change in the information set forth in the Registration Statement as of
such date, (iii) the Registration Statement and the Prospectus comply, and,
as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iv) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this Section 1(b) do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Trust or the
Company in writing by such Underwriter through the Manager expressly for
use therein.
(c) 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 presently conducted and as described
in the Registration Statement and 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, 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, considered
as one enterprise.
(d) Each of Sun Life Insurance Company of America, 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") 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 presently conducted and as
described in the Registration Statement and 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, considered as one enterprise; and
all of the issued and outstanding capital stock of each Subsidiary has been
duly authorized and validly issued, is fully paid and nonassessable and is
owned (except for directors qualifying shares) directly or through
subsidiaries, by the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(e) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act, is and will be
treated as a "grantor trust" for Federal income tax purposes under existing
law, has the business trust power and authority to conduct its business as
presently conducted and as described in the Registration Statement and
Prospectus, and is not required to be authorized to do business in any other
jurisdiction.
(f) The Trust and the Company have taken all business trust
and corporate action necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement has been validly executed and
delivered by each of the Trust and the Company.
(g) No consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Trust or the Company of its obligations under this
Agreement, or the issuance and sale of the Preferred Securities, except such
as may be required by the securities or Blue Sky laws or insurance securities
laws of the various states in connection with the offer and sale of the
Preferred Securities.
(h) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Registration Statement and Prospectus
(except for subsequent issuances, if any, pursuant to reservations, stock
option agreements, employee benefit plans or the exercise of convertible
securities which may be referred to in the Registration Statement and
Prospectus); all of the issued and outstanding shares of capital stock have
been duly authorized and validly issued and are fully paid, nonassessable and
not subject to any preemptive or similar rights.
(i) As of the Closing Date, the Trust Securities will have
been duly authorized by the Declaration and (x) when the Preferred
Securities are issued in accordance with the terms of this Agreement and
delivered to and paid for by the Underwriters and (y) the Common Securities
are issued against payment therefor as provided in the Declaration, such
Trust Securities will be duly and validly issued and (subject to the terms
of the Declaration) will be fully paid and nonassessable undivided
beneficial interests in the assets of the Trust, not subject to any
preemptive or similar rights, and will conform to all statements relating
thereto contained in the Registration Statement and Prospectus. Holders of
Trust Securities will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
(j) As of the Closing Date, the Declaration will have been
duly authorized, executed and delivered by the Company and the other
trustees of the Trust (the "Trustees") and will be a valid and binding
obligation of the Company and the Trustees, enforceable against the Company
and the Trustees in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights and
remedies generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity).
(k) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and, as of the Closing Date, assuming
due authorization, execution and delivery by the Trustee thereunder, of the
Indenture, the Supplemental Indenture and the Debentures, the Indenture (as
so supplemented) and the Debentures will be valid and binding agreements 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; and the Indenture and the Debentures
will conform in all respects to statements relating thereto contained in
the Registration Statement and the Prospectus.
(l) None of the Trust, the Company nor any of the
Subsidiaries is in violation of its respective Declaration, charter or
bylaws, as applicable, or in default in the performance 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 Trust, the Company or any of the Subsidiaries is a
party or by which any of them may be bound, or to which any of the property
or assets of the Trust, the Company or of 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 Trust, the Company and its subsidiaries, considered as one enterprise;
and the execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated herein and in the Prospectus
will not 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 Trust, the Company or any of the
Subsidiaries pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Trust, the Company
or any of the Subsidiaries is a party or by which any of them may be bound,
or to which any of the property or assets of the Trust, the Company or any
of the Subsidiaries is subject, 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 Trust, the Company and its subsidiaries considered as one
enterprise, nor will such action result in any violation of the provisions
of the respective Declaration, charter or bylaws of the Trust, the Company
or any of the Subsidiaries, as applicable, or any applicable law,
administrative regulation or administrative or court decree.
(m) There is no action, suit, or proceeding before or by
any court or governmental agency or body, domestic or foreign, pending
against or, to the knowledge of the Company, threatened against or
affecting any of the Trust, the Company or any subsidiaries of the Company,
or any of their respective assets or properties, which is required to be
disclosed in the Registration Statement or the Prospectus (other than as
disclosed therein), or which is reasonably likely to result in any material
adverse change in the condition, financial or otherwise, or in the earnings
or business affairs of the Trust or the Company and its subsidiaries,
considered as one enterprise, or which would be reasonably likely to
materially and adversely affect a material portion of the properties or
assets thereof or which is reasonably likely to materially and adversely
affect the consummation of this Agreement; all pending legal or
governmental proceedings to which the Trust or 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 Trust or the Company or any of its subsidiaries, are,
considered in the aggregate, not material; and there are no contracts or
documents of the Trust or the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement or
Prospectus by the Securities Act, the Exchange Act or the rules and
regulations promulgated thereunder, which have not been filed.
(n) Price Waterhouse LLP, the accountants who certified the
financial statements and supporting schedules of the Company included or
incorporated by reference in the Registration Statement and Prospectus, are
independent public accountants with respect to the Trust and the Company and
the subsidiaries of the Company as required by the Securities Act and the
rules and regulations promulgated thereunder.
(o) The financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus present
fairly the financial position of the Company and the consolidated subsidiaries
of the Company as of the dates indicated and the results of their operations
for the periods specified; except as otherwise stated in the Registration
Statement and Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis; the ratios of earnings to combined fixed charges (including
preferred stock dividends) included in the Registration Statement or
Prospectus have been calculated in compliance with Item 503(d) of Regulation
S-K of the Commission; and the supporting schedules included or incorporated
by reference in the Registration Statement or Prospectus present fairly the
information required to be included therein.
(p) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as otherwise
stated or contemplated therein, (i) 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 its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) there have been no
transactions entered into by the Company or any of the Subsidiaries which are
material to the Company and its subsidiaries, considered as one enterprise,
other than those entered into in the ordinary course of business and (iii)
except for regular quarterly dividends, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(q) The Trust, 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 Registration Statement or
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
Trust or the Company and its subsidiaries, considered as one enterprise; and
none of the Trust, 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 Trust or
the Company and its subsidiaries, considered as one enterprise.
(r) Neither the Trust nor the Company is an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(s) None of the Trust, the Company or any of their affiliates
is presently doing business with the government of Cuba or with any person or
affiliate located in Cuba.
2. Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Preferred Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Preferred Securities are set forth in the Prospectus.
3. Purchase and Delivery. Payment for the Preferred
Securities to be purchased by the Underwriters on the Closing Date or the
Option Closing Date, as the case may be, shall be made by certified or
official bank check or checks payable to the order of the Company in New York
Clearing House or similar next-day funds at the time and place set forth in
the Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Preferred Securities in
certificated form, registered in such names and in such denominations as the
Manager shall request in writing not less than one full business day prior to
the date of delivery, with any transfer taxes payable in connection with the
transfer of the Preferred Securities to the Underwriters duly paid.
4. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or
in the earnings, business or operations, of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(c) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (b) above
and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Trust and the Company have complied with
all of the agreements and satisfied all of the obligations on their
part to be performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date
opinions of Piper & Marbury, Maryland counsel for the Company, ▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq., Vice President and General Counsel--Corporate
Affairs for the Company, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for
the Company, and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, Delaware counsel for the
Trust, each dated the Closing Date, to the effect set forth in
Exhibits A, B, C and D, respectively. In giving such opinion, (i)
▇▇. ▇▇▇▇▇▇ may rely, as to matters governed by laws other than the
laws of the State of California and the federal law of the United
States of America, on an opinion or opinions of ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, (ii) ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 or opinions of Piper & Marbury and
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger and (iii) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger may
rely, as to matters governed by laws other than the State of
Delaware, or an opinion or opinions of Piper & Marbury and ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, in each case so long as such opinion shall be dated the
Closing Date and in form and substance satisfactory to the Manager,
and shall expressly permit the Underwriters to rely thereon as if
such opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an
opinion of special counsel for the Underwriters (the selection of
whom shall be approved by the Company), dated the Closing Date, to
the effect set forth in paragraphs (i) and (ii) in Exhibit A,
paragraphs (i) through (iv) and (vi) through (viii) in Exhibit C and
paragraphs (i) through (v) in Exhibit D. In giving such opinion,
such counsel may rely, as to matters governed by laws other than the
federal law of the United States of America, on an opinion or opinions
of local counsel satisfactory to the Manager, so long as each such
opinion shall be dated the Closing Date and in form and substance
satisfactory to the Manager, and shall expressly permit the
Underwriters to rely thereon as if such opinion were addressed to
Underwriters.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Manager, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
(g) The Manager shall have received a certificate from The
Bank of New York and The Bank of New York (Delaware), as Trustees,
dated the Closing Date and signed by appropriate officers of such
Trustees, containing statements and information substantially in the
form of Appendix E hereto.
(h) The Preferred Securities of the Trust shall have been
approved for listing on the New York Stock Exchange upon notice of
issuance.
(i) On the Closing Date, (i) the Preferred Securities shall
have a rating of at least "Baa2" from ▇▇▇▇▇'▇ Investors Service, Inc.
and at least "A-" from Standard & Poor's Corporation as evidenced in
a letter from such rating agencies or by other evidence satisfactory
to the Manager and (ii) no securities of the Company or of any other
SunAmerica Capital Trust that is (x) organized in substantially the
form of, and for substantially the same purpose as, the Trust and (y)
whose common equity capital is wholly-owned by the Company or its
subsidiaries (each a "SunAmerica Trust") shall have been downgraded
or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization.
The several obligations of the Underwriters to purchase
Additional Securities hereunder are subject to delivery to the Manager on the
Option Closing Date of such opinions, certificates and documents contemplated
by this Section 4 as such Manager shall reasonably request relating to the
issuance of the Additional Securities.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement
as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Preferred Securities,
the Debentures or the Guarantee, to furnish to the Manager a copy of
each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager reasonably
objects.
(c) If, during such period after the first date of the
public offering of the Preferred Securities as the Prospectus is
required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as
a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters,
and to the dealers (whose names and addresses the Manager will
furnish to the Company) to which Preferred Securities may have
been sold by the Manager on behalf of the Underwriters and to any
other dealer upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus, as so amended or supplemented, will comply
with law.
(d) To endeavor to qualify the Preferred Securities for
offer and sale under the securities or Blue Sky laws or insurance
securities laws of such jurisdictions as the Manager shall
reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification
and in connection with any review of the offering of the Preferred
Securities by the National Association of Securities Dealers, Inc.
(e) To make generally available to the security holders of
the Trust and the Company and to the Manager as soon as
practicable an earning statement covering a twelve month period
beginning on the first day of the first full fiscal quarter after
the date of this Agreement, which earning statement shall satisfy
the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder.
(f) During the period mentioned in paragraph (c) above, to
advise the Underwriters promptly of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceeding for
that purpose.
6. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages and liabilities, joint or several (including,
without limitation, any legal or other expenses reasonably incurred by any
Underwriter 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, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Trust and the Company shall
have furnished any amendments or supplements thereto), 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 Trust and the Company by any Underwriter in
writing through the Manager expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting such losses, claims, damages or liabilities purchased
Offered Securities, or any person controlling such Underwriter, if a copy
of the Prospectus (as then amended or supplemented, if the Trust and the
Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to such purchase,
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.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the (i) the Trust, its Trustees, its officers
who sign the Registration Statement and each person, if any, who controls
the Trust within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and (ii) 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
Securities Act or Section 20 of the Exchange Act, in each such case to the
same extent as the foregoing indemnity from the Company to such
Underwriter, 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 Trust or the Company by any
Underwriter in writing through the Manager expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto. This indemnity will be in addition to
any liability which the Underwriters may otherwise have.
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
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 Manager,
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.
If the indemnification provided for in the first or second
paragraph in this Section 6 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 Trust and the Company on the one hand and
the Underwriters on the other hand from the offering of the Preferred
Securities 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 Trust and the Company on the one hand and of the
Underwriters 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 Trust and the Company on the one hand and the Underwriters on the other
hand in connection with the offering of the Preferred Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Preferred Securities (before deducting expenses) received by
the Trust and the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Trust and the
Company on the one hand and of the Underwriters 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 Trust or the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant to
this Section 6 are several in proportion to the respective principal amounts
of Preferred Securities purchased by each of such Underwriters and not joint.
The Trust, the Company and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this Section 6
were determined by pro rata allocation (even if the Underwriters 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 6, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Preferred Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that
such Underwriter 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 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.
The indemnity and contribution provisions contained in this
Section 6 and the representations and warranties of the Trust and 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 Underwriter or any person controlling any
Underwriter or by or on behalf of the Trust, its Trustees or any person
controlling the Trust, the Company, its directors or officers or any person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
7. Termination. This Agreement shall be subject to
termination, by notice given by the Manager to the Trust and the Company, if
(a) after the execution and delivery of the Underwriting Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, the New York Stock Exchange
or the American Stock Exchange, (ii) trading of any securities of the Company
or of any SunAmerica Trust shall have been suspended on any exchange or in any
over-the-counter market, (iii) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity
or crisis that, in the judgment of the Manager, is material and adverse, or
(iv) a general moratorium on commercial banking activities in New York shall
have been declared by either federal or New York State authorities, and (b) in
the case of any of the events specified in clauses (a)(i) through (iii), such
event, singly or together with any other such event, makes it, in the judgment
of the Manager, impracticable to market the Preferred Securities on the terms
and in the manner contemplated in the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date or the
Option Closing Date, as the case may be, any one or more of the Underwriters
shall fail or refuse to purchase Preferred Securities that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of
Preferred Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Preferred Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number
of Preferred Securities set forth opposite their respective names above bears
to the aggregate number of Preferred Securities set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as the
Manager may specify, to purchase the Preferred Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Preferred
Securities that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 8 by an number in excess of
one-ninth of such number of Preferred Securities without the written consent
of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Preferred Securities to be purchased on such
date and the aggregate number of Preferred Securities with respect to which
such default occurs is more than one-tenth of the aggregate number of
Preferred Securities to be purchased on such date, and arrangements
satisfactory to the Manager and the Company for the purchase of such Preferred
Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either the Manager or the
Company shall have the right to postpone the Closing Date but in no event for
longer then seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Preferred Securities to be
purchased on such date and the aggregate number of Preferred Securities with
respect to which such default occurs is more than one-tenth of the aggregate
number of Preferred Securities to be purchased on such date, the non-defaulting
Underwriters shall have the option to (i) terminate their obligation hereunder
to purchase Preferred Securities to be purchased on such date or (ii) purchase
not less than the number of Preferred Securities that such non-defaulting
Underwriters would have been obligated to purchase on such date in the absence
of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Trust or the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Trust or the Company shall be unable to
perform its obligations under this Agreement, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering of the
Preferred Securities. Nothing in the foregoing sentence shall limit the
Company's obligations to pay expenses as provided in Section 5.
9. Miscellaneous. The Underwriting Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
10. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
11. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same agreement.
Exhibit A
Opinion of Maryland Counsel for the Company
The opinion of Piper & Marbury, Maryland counsel for the
Company, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement, shall be limited to the laws of the State of Maryland and shall be
to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws under
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) the Underwriting Agreement, the Declaration, the
Indenture, the Debentures and the Guarantee have been duly
authorized, executed and delivered by the Company; and
(iii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the
Underwriting Agreement, the Declaration, the Indenture, the
Debentures and the Guarantee will not contravene any provision of
any material applicable law of the State of Maryland or the
articles of incorporation or by-laws of the Company (excluding the
securities or Blue Sky laws of the State of Maryland, as to which
such counsel need not express any opinion).
Exhibit B
Opinion of Counsel for the Company
The opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President and General
Counsel--Corporate Affairs of the Company, to be delivered pursuant to Section
4(d) of the Underwriting Agreement shall be 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 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, on the earnings or business
affairs of the Company and its subsidiaries, taken as a whole;
(ii) each Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation and has the corporate
power and authority to own, lease and operate its properties and
to conduct its business as presently conducted and as described in
the Registration Statement and Prospectus; nothing has come to the
attention of such counsel to lead such counsel to believe that any
of Sun Life Insurance Company of America, 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 considered as one
enterprise; to the best of such counsel's knowledge and
information, all of the issued and outstanding capital stock of
each Subsidiary is owned (except for directors qualifying shares),
directly or through subsidiaries, by the Company, free and clear
of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity;
(iii) to the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as exhibits
thereto other than those described or referred to therein or filed as
exhibits thereto, the descriptions thereof or references thereto are
correct and, to the best of such counsel's knowledge and information,
no default exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or
other instrument so described, referred to or filed, which default
could have a material adverse effect on the Trust or the Company and
its subsidiaries considered as one enterprise;
(iv) to the best of such counsel's knowledge and
information, the execution and delivery of the Underwriting
Agreement, the Declaration, the Indenture, the Debentures and the
Guarantee and the consummation of the transactions contemplated
herein and in the Registration Statement and Prospectus will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Trust, the Company
or any of the Subsidiaries pursuant to, any material contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Trust, the Company or any of the
Subsidiaries is a party or by which any of them may be bound, or
to which any of the property or assets of the Trust, the Company
or any of the Subsidiaries is subject, 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 Trust or the
Company and its subsidiaries considered as one enterprise nor will
such action result in any violation of the provisions of the
respective Declaration, charter or by-laws of the Trust, the
Company and the Subsidiaries, as applicable, or any material
applicable law, administrative regulation or administrative or
court decree;
(v) to the best of such counsel's knowledge and information,
no consent, approval, authorization or order of or qualification
with any governmental body or agency is required for the
performance by the Trust or the Company of its obligations under
the Underwriting Agreement, or the issuance and sale of the
Preferred Securities except such as may be required by the
securities or Blue Sky laws or insurance securities laws of the
various states in connection with the offer and sale of the
Preferred Securities;
(vi) to the best of such counsel's knowledge and information,
there are no legal or governmental proceedings pending or threatened
or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus that are not described as required;
(vii) such counsel (1) is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus (except for financial statements,
supporting schedules and other financial data included or
incorporated by reference therein, as to which such counsel need not
express any opinion) appeared on its face to be appropriately
responsive in all material respects to the requirements of the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (2) believes that (except for financial
statements, supporting schedules and other financial data included
or incorporated by reference therein, as to which such counsel need
not express any belief, and except for the part of the Registration
Statement that constitutes the Form T-1 heretofore referred to) each
part of the Registration Statement, when such part became effective
did not, and as of the date such opinion is delivered, does not
contain any 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, (3) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements, supporting schedules and other financial data included or
incorporated by reference therein, as to which such counsel need not
express any opinion, and except for the part of the Registration
Statement that constitutes the Form T-1 heretofore referred to)
appear on their face to be appropriately responsively in all material
respects to the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder and (4) believes
that (except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein, as to
which such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(viii) the Registration Statement is effective under the
Securities Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement is in effect under the Securities Act, and no
proceedings for such purpose are pending before or threatened by
the Commission.
With respect to the foregoing paragraph (vii), such counsel may
state that her opinion and belief are based upon her participation in the
preparation of the Registration Statement and Prospectus and any amendments,
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified.
Exhibit C
Opinion of Special Counsel for the Company
The opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the
Company, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement shall be to the effect that:
(i) the statements in the Prospectus under the captions
"Description of the Preferred Securities," "Description of the Junior
Subordinated Debentures" and "Description of the Preferred Securities
Guarantee", insofar as such statements constitute summaries of the
legal matters or documents referred to therein, have been reviewed by
such counsel and fairly summarize the matters referred to therein;
(ii) the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and, assuming due authorization,
execution and delivery by the Company and the Trustee thereunder of
the Indenture, the Supplemental Indenture and the Debentures, each of
the Supplemental Indenture, Indenture (as so supplemented) and the
Debentures will be 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;
(iii) the Preferred Securities, the Debentures and the
Guarantee conform in all material respects to the descriptions
thereof contained in the Prospectus and the Registration Statement;
(iv) neither the Trust nor the Company is an "investment
company" or a company "controlled by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended;
(v) to the best of such Counsel's knowledge and information,
no consent, approval, authorization or order of or qualification with
any governmental body or agency is required for the performance by
the Trust or the Company of its obligations under the Underwriting
Agreement, or the issuance and sale of the Preferred Securities,
except such as may be required by the securities or Blue Sky laws or
insurance securities laws of the various states in connection with
the offer and sale of the Preferred Securities;
(vi) the statements in the Prospectus under the caption "Plan
of Distribution," insofar as such statements constitute summaries of
the legal matters or documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents or proceedings and fairly summarize the matters
referred to therein;
(vii) such counsel (1) believes that (except for financial
statements, supporting schedules and other financial data included
or incorporated by reference therein and any of the documents
incorporated by reference therein, as to which such counsel need
not express any belief, and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore
referred to) each part of the Registration Statement, when such
part became effective did not, and as of the date such opinion is
delivered, does not contain any 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, (2) is of the opinion that the Registration Statement
and Prospectus (except for financial statements, supporting
schedules and other financial data included or incorporated by
reference therein and any of the documents incorporated or deemed
to be incorporated by reference therein, as to which such counsel
need not express any opinion, and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore
referred to) appear on their face to be appropriately responsive
in all material respects to the requirements of the Securities Act
and the applicable rules and regulations of the Commission
thereunder and (3) believes that (except for financial statements,
supporting schedules and other financial data included or
incorporated by reference therein and any of the documents
incorporated or deemed to be incorporated by reference therein, as
to which such counsel need not express any belief) the Prospectus
as of the date such opinion is delivered does not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading;
and
(viii) the Registration Statement is effective under the
Securities Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement is in effect under the Securities Act, and no
proceedings for such purpose are pending before or threatened by
the Commission.
With respect to the foregoing paragraph (vii), such counsel
may state that their opinion and belief are based upon their participation
in the preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the documents incorporated by
reference) and upon review and discussion of the contents thereof
(including documents incorporated by reference) but are without independent
check or verification, except as specified.
Exhibit D
Opinion of Delaware Counsel for the Trust
The opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special counsel for
the Trust, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement shall be to the effect that:
(i) the Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act and under
the Declaration and the Delaware Act has the business trust power and
authority to conduct its business as described in the Registration
Statement and Prospectus;
(ii) assuming due authorization, execution and delivery of the
Declaration by the Company and the Trustees, the Declaration is a
legal, valid and binding agreement of the Company and the Trustees,
enforceable against the Company and the Trustees in accordance with
its terms, except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or other similar laws relating to
or affecting the rights and remedies of creditors generally and (b)
principles of equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a proceeding
in equity or at law);
(iii) under the Declaration and the Delaware Act, the
execution and delivery of the Underwriting Agreement by the Trust,
and the performance by the Trust of its obligations thereunder,
have been duly authorized by all business trust action on the part
of the Trust;
(iv) the Trust Securities have been duly authorized by the
Declaration and (x) when the Preferred Securities are issued in
accordance with the terms of the Underwriting Agreement and
delivered to and paid for by the Underwriters and (y) the Common
Securities are issued against payment therefor as provided in the
Declaration, such Trust Securities will be duly and validly issued
and, subject to the qualifications set forth in such opinion, will
be fully paid and nonassessable undivided beneficial interests in
the assets of the Trust; the holders of Trust Securities, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware;
In rendering such opinion, such counsel may note that
holders of Trust Securities may be obligated, pursuant to the
Declaration, to (i) provide indemnity and security in connection
with and pay taxes or other governmental charges arising from
transfers of certificates for Trust Securities and the issuance of
replacement certificates for Trust Securities, (ii) provide
security and indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and
remedies under the Declaration and (iii) undertake as a party
litigant to pay costs in any suit for the enforcement of any right
or remedy under the Declaration or against the Property Trustee,
to the extent provided in the Declaration. In rendering such
opinion such counsel may also note that the Company, in its
capacity as Sponsor and not in its capacity as a Holder, has
undertaken certain payment obligations as set forth in the
Declaration; and
(v) under the Declaration and the Delaware Act, the issuance
of the Trust Securities is not subject to preemptive rights.
Exhibit E
TRUSTEES' CERTIFICATE
The Bank of New York, a New York banking corporation
("BONY-NY"), and The Bank of New York (Delaware), a Delaware banking
corporation ("BONY-DEL," and together with BONY-NY, the "Trustees"), each
hereby certifies that:
1. The [Declaration of Trust] [Amended and Restated
Declaration of Trust] of SunAmerica Capital Trust [_] (the "Trust"), dated as
of ________ __, 199[_] (the "Declaration of Trust"), by and among SunAmerica
Inc., a Maryland corporation, as sponsor (the "Sponsor"), the Trustees and the
other parties thereto has been duly executed and delivered in the name and on
behalf of each of BONY-NY and BONY-DEL by ______________, its ____________,
and ______________, its __________________, respectively.
2. Each person who, on behalf of each of the Trustees,
executed and delivered the [Declaration of Trust] [Amended and Restated
Declaration of Trust] was at the date thereof and is now duly elected,
appointed or authorized, qualified and acting as an officer or authorized
signatory of such Trustee and duly authorized to perform such act at the time
of such act and the signatures of such persons appearing on such documents are
their genuine signatures.
3. Attached hereto are (a) an extract from the By-laws of each
of the undersigned, duly adopted by its Board of Directors, respecting the
signing authority of the persons mentioned above in paragraph 2 above, and (b)
a letter from a Senior Executive Vice President of each of the undersigned
authorizing, pursuant to such By-laws, such signing authority, which By-laws
and letter at the date hereof are in full force and effect.
4. To the knowledge of the Trustees, without any independent
investigation, the statutory business trust created pursuant to [the
Declaration of Trust] [that certain original declaration of trust, dated as of
_________ __, 199[_], by and among the Sponsor, the Trustees and the other
parties thereto] (a) has conducted no business other than in connection with
the Registration Statement on Form S-3 (No. 33-[______]) of the Sponsor, the
Trust and other trusts organized by the Sponsor (the "Registration Statement")
and (b) has no liabilities other than in connection with the Registration
Statement.
IN WITNESS WHEREOF, each of the Trustees has caused this
certificate to be executed in its corporate name by an officer thereunto duly
authorized and its corporate seal to be affixed hereto.
Dated: __________ __, ▇▇▇[_]
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
as trustee
By:________________________
Name:
Title:
[SEAL]
The Bank of New York
[Delaware], as trustee
By:________________________
Name:
Title:
[SEAL]