$250,000,000
CREDIT AGREEMENT
Dated as of October 27, 1995
Among
SUNAMERICA INC.
and
SUNAMERICA FINANCIAL, INC.,
as Borrowers,
THE BANKS NAMED HEREIN,
as Lenders,
and
CITIBANK, N.A.,
as Agent
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1.1. Certain Defined Terms............................1
1.2. Computation of Time Periods......................11
1.3. Accounting Terms.................................11
1.4. Convention Statement.............................11
ARTICLE II THE ADVANCES
2.1. Commitments to Lend..............................11
2.2. Notice of Committed Borrowings...................11
2.3. Money Market Borrowings..........................12
2.4. Notice to Lenders; Funding of Advances...........14
2.5. Notes............................................15
2.6. Maturity of Advances.............................16
2.7. Interest Rate....................................16
2.8. Fees.............................................17
2.9. Regulation D Compensation........................17
2.10. Optional Termination or Reduction of
Commitments......................................18
2.11. Mandatory Termination or Reduction of the
Commitments......................................18
2.12. Optional Prepayments.............................18
2.13. General Provisions as to Payments................18
2.14. Funding Losses...................................19
2.15. Computation of Interest and Fees.................19
2.16. Sharing of Payments, etc.........................19
2.17. Withholding Tax Exemption........................20
ARTICLE III CHANGES IN CIRCUMSTANCES
3.1. Basis for Determining Interest Rate Inadequate
or Unfair........................................21
3.2. Illegality.......................................21
3.3. Increased Cost and Reduced Return................22
3.4. Base Rate Advances Substituted for Affected Fixed
Rate Advances....................................23
3.5. Substitution of Lender...........................23
3.6. Discretion of Lenders as to Manner of
Funding..........................................23
3.7. Conclusiveness of Statements; Survival of
Provisions.......................................23
ARTICLE IV CONDITIONS OF LENDING
4.1. Effectiveness....................................24
4.2. Conditions Precedent to Advances.................24
ARTICLE V REPRESENTATIONS AND WARRANTIES
5.1. Organization, etc................................25
5.2. Authorization....................................25
5.3. No Conflict......................................25
5.4. Governmental Consents............................25
5.5. Validity.........................................25
5.6. Financial Statements.............................25
5.7. Litigation.......................................26
5.8. Liens............................................26
5.9. Subsidiaries.....................................26
5.10. Compliance with ERISA............................27
5.11. Investment Company Act...........................27
5.12. Public Utility Holding Company Act...............27
5.13. Margin Regulation................................27
5.14. Taxes............................................27
5.15. Accuracy of Information..........................27
5.16. Proceeds.........................................27
5.17. Governmental Authorizations......................28
5.18. Insurance Licenses...............................28
5.19. Compliance with Laws.............................28
5.20. No Default.......................................28
ARTICLE VI AFFIRMATIVE COVENANTS
6.1. Reports, Certificates and Other Information......28
6.2. Corporate Existence; Foreign Qualification.......31
6.3. Compliance with Laws.............................31
6.4. Books, Records and Inspections...................31
6.5. Insurance........................................31
6.6. Maintenance of Properties........................32
6.7. Taxes............................................32
6.8. Maintenance of Ratings...........................32
6.9. Compliance with ERISA............................32
ARTICLE VII NEGATIVE COVENANTS
7.1. Liens............................................32
7.2. Consolidation, Merger, Sales of Stock
and Assets, etc..................................34
7.3. Business Activities..............................34
ARTICLE VIII FINANCIAL COVENANTS
8.1. Consolidated Tangible Net Worth..................34
8.2. Consolidated Debt to Total Capital...............35
8.3. Risk-Based Capital Ratio.........................35
8.4. Total Invested Assets............................35
ARTICLE IX EVENTS OF DEFAULT
9.1. Events of Default................................35
ARTICLE X AGENT
10.1. Authorization and Action.........................36
10.2. Agent's Reliance, etc............................37
10.3. Agent and Affiliates.............................37
10.4. Lender Credit Decision...........................37
10.5. Indemnification..................................38
10.6. Successor Agent..................................38
ARTICLE XI MISCELLANEOUS
11.1. Amendments, etc..................................38
11.2. Notices, etc.....................................39
11.3. No Waiver; Remedies..............................39
11.4. Costs and Expenses...............................39
11.5. Right of Set-off.................................39
11.6. Binding Effect...................................40
11.7. Assignments and Participations...................40
11.8. Submission to Jurisdiction; Waiver of
Jury Trial.......................................42
11.9. Governing Law....................................42
11.10. Execution in Counterparts........................42
11.11. Collateral.......................................42
Schedule 1 to Credit Agreement
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Notice of Committed Borrowing
Exhibit C Form of Money Market Quote Request
Exhibit D Form of Invitation for Money Market Quotes
Exhibit E Form of Money Market Quote
Exhibit F Form of Opinion of counsel for the Borrowers
Exhibit G Form of Assignment and Acceptance
Exhibit H Form of Consolidating Quarterly Reports of the Borrowers
CREDIT AGREEMENT
Dated as of October 27, 1995
SUNAMERICA INC., a Maryland corporation ("SunAmerica") and
SUNAMERICA FINANCIAL, INC., a Georgia corporation ("SAFI," and together
with SunAmerica, the "Borrowers"), the banks listed on the signature pages
hereof and CITIBANK, N.A., as agent for the Lenders hereunder, agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of
the terms defined):
"Absolute Rate Auction" means a solicitation of Money
Market Quotes setting forth Money Market Absolute Rates pursuant
to Section 2.3.
"Advance" means an advance under Article II by a Lender to
a Borrower pursuant to its Commitment, and refers to a Base Rate
Advance, Eurodollar Advance or Money Market Advance (each of which
shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by or is
under common control with such Person.
"Agent" means Citibank, as agent, or any successor
thereof.
"Agreement" means this Credit Agreement, as the same may
be amended, modified or supplemented from time to time.
"Anchor" means Anchor National Life Insurance Company, a
California stock insurance company.
"Annual Reports" has the meaning set forth in Section
5.6(b)(i).
"Applicable Lending Office" means, with respect to each
Lender, (a) in the case of its Base Rate Advances, its Domestic
Lending Office, (b) in the case of its Eurodollar Advances, its
Eurodollar Lending Office, and (c) in the case of its Money Market
Advances, its Money Market Lending Office.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an Eligible Assignee, and
accepted by the Agent, in substantially the form of Exhibit G
hereto.
"Base Rate" means, for any period, a fluctuating interest
rate per annum as shall be in effect from time to time which rate
per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate; or
(b) the sum (adjusted to the nearest 1/4 of one
percent or, if there is no nearest 1/4 of one percent, to
the next higher 1/4 of one percent) of (i) 1/2 of one
percent per annum plus (ii) the rate per annum obtained by
dividing (A) the latest three-week moving average of
secondary market morning offered rates in the United
States for three-month certificates of deposit of major
United States money market banks, such three-week moving
average being determined weekly on each Monday (or, if any
such day is not a Domestic Business Day, on the next
succeeding Domestic Business Day) for the three-week
period ending on the previous Friday by Citibank on the
basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of
New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of
deposit dealers of recognized standing selected by
Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited
to, any emergency, supplemental or other marginal reserve
requirement) for Citibank in respect of liabilities
consisting of or including (among other liabilities) three
month U.S. dollar nonpersonal time deposits in the United
States, plus (iii) the average during such three-week
period of the highest and lowest annual assessment rate
(rounded upward, if necessary, to the next higher 1/100 of
1%) which the Federal Deposit Insurance Corporation (or
any successor) charges banking institutions on the basis
of their assessment rate classification for such Corpora-
tion's insuring U.S. dollar deposits in the United States.
"Base Rate Advance" means an Advance that bears interest
as provided in Section 2.7(a).
"Benefit Arrangement" means, at any time, an employee
benefit plan within the meaning of Section 3(3) of ERISA which is
not a Plan or a Multiemployer Plan and which is maintained or
otherwise contributed to by any member of the ERISA Group.
"Borrowers" has the meaning set forth in the first
paragraph of this Agreement and their permitted successors and
assigns.
"Borrowing" means a borrowing pursuant to a Notice of
Borrowing consisting of Advances of the same Type made on the same
day by the Lenders.
"Capital Lease" means a lease which has been or should be,
in accordance with GAAP, treated as a capital lease.
"Change in Control" means, during any 12 month period,
that individuals who as of the first day of such 12 month period
constitute SunAmerica's Board of Directors (such Board of
Directors as of the day immediately preceding such first day, the
"incumbent Board"), cease for any reason to constitute at least a
majority of the directors constituting the Board of Directors,
provided that any person becoming a director during such 12 month
period whose election, or nomination for election by SunAmerica's
shareholders, was approved by a vote of at least three-quarters of
the then directors who are members of the incumbent Board shall
be, for purposes of this definition, considered as though such
person were a member of the incumbent Board unless such person's
initial assumption of office is (a) in connection with the
acquisition by a third person, including a "group" as such term is
used in Section 13(d)(3) of the Exchange Act, of beneficial
ownership, directly or indirectly, of 20% or more of the total
voting power of outstanding SunAmerica Voting Stock (unless such
acquisition of beneficial ownership was approved by a majority of
the Board of Directors who are members of the incumbent Board), or
(b) in connection with an actual or threatened election contest
relating to the election of the directors of SunAmerica, as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act.
"Citibank" means Citibank, N.A.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means the amount set forth opposite each
Lender's name on Schedule 1 hereto (or in an Assignment and
Acceptance entered into by it) as its Commitment, as such amount
may be adjusted from time to time to give effect to Money Market
Reductions pursuant to Section 2.1 or reduced from time to time
pursuant to Section 2.10.
"Committed Advance" means an Advance made by a Lender
pursuant to Section 2.1.
"Committed Borrowing" means a Borrowing consisting of
Committed Advances.
"Consolidated Debt" means the consolidated Debt of
SunAmerica and its Subsidiaries, determined in accordance with
GAAP, to the extent such Debt is reflected or is required under
GAAP to be reflected on the consolidated balance sheet of
SunAmerica and its Subsidiaries, provided that such Debt shall not
include Debt specified in clause (vii) of the definition of Debt
or in clauses (i), (ii) and (iii) (so long as none of the events
referred to in the parenthetical clause of such clause (ii) has
occurred) of the definition of Permitted Collateralization
Obligations.
"Consolidated Tangible Net Worth" means, without
duplication, the total of (a) the consolidated shareholders'
equity of SunAmerica and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, plus (b) the Trust
Originated Preferred Securities (or similar securities) on
SunAmerica's balance sheet plus or minus, as the case may be, (c)
any net unrealized losses or gains, as the case may be, on
securities "available for sale" shown thereon as a separate
component of consolidated shareholders' equity in accordance with
the Proposed Statement of Financial Accounting Standards
"Accounting for Certain Investments in Debt and Equity
Securities", as the same may be implemented, minus (d) the
carrying value of goodwill, any covenant not to compete, capital-
ized organizational expenses and other assets treated as
intangibles under GAAP arising from the acquisition, through stock
purchase, merger or otherwise, of the stock or assets of any
Person (other than intangibles classified as deferred acquisition
costs arising from the writing of new insurance policies or
contracts), and minus (e) treasury stock and capital stock,
obligations or other securities of, or capital contributions to,
or investments in, any unconsolidated Subsidiary.
"Consolidated Total Capital" means, as of any date of
determination, the sum of Consolidated Tangible Net Worth plus
Consolidated Debt.
"Contingent Obligation" means any agreement, undertaking
or arrangement by which any Person guarantees, endorses or
otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for
payment, to supply funds to, or otherwise to invest in, a debtor,
or otherwise to assure a creditor against loss) the obligation or
other liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any
other Person. The amount of any Person's liability with respect
to any Contingent Obligation shall (subject to any limitation set
forth therein) be deemed to be the outstanding principal amount
(or maximum outstanding principal amount, if larger) of the debt,
obligation or other liability outstanding thereunder.
"Convention Statement" means each annual and quarterly
financial statement of each Insurance Subsidiary as filed with the
appropriate Governmental Authority of its state of domicile, as
such form may be amended from time to time pursuant to the
requirements of such Governmental Authority.
"Debt" means, with respect to any Person at any date,
without duplication: (i) all obligations of such Person for
borrowed money or for loans or advances; (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments; (iii) all Capital Lease obligations of such Person;
(iv) all obligations of such Person to pay the deferred purchase
price of property or services, and Debt secured by a Lien on
property owned or being purchased by such Person (including Debt
arising under conditional sales or other title retention
agreements); (v) all Debt of another Person secured by a Lien on
any assets of such first Person, whether or not such Debt is
assumed by such first Person; (vi) all non-contingent obligations
of such Person as account party to reimburse any bank or other
Person in respect of amounts actually paid under a letter of
credit or similar instrument; (vii) all obligations of such Person
to purchase securities (or other property) that arise out of or in
connection with the sale of the same securities or property (e.g.,
obligations under repurchase agreements and reverse repurchase
agreements); and (viii) all Contingent Obligations of such Person
with respect to the Debt of another Person, provided that Debt
shall not include (a) accounts payable arising in the ordinary
course of business, (b) contingent liabilities with respect to
certain reinsurance arrangements of SunAmerica Life disclosed in
footnote number 5 to Consolidated Financial Statements of
SunAmerica for the fiscal year ended September 30, 1994, (c)
obligations arising in the capacity as a creditor in respect of
loan or swap participations and similar arrangements in the ordi-
nary course of business or (d) obligations under insurance
policies or contracts, guaranteed investment contracts, funding
agreements or similar obligations issued or entered into by the
Borrowers and their Subsidiaries; and provided further that, with
respect to any Debt of another Person specified in clause (v) not
assumed by the first Person, the amount of such Debt shall be the
lower of the amount of the obligation or the fair market value of
the collateral securing such obligation.
"Default" means any condition or event which constitutes
an Event of Default or which with the giving of notice or lapse of
time or both would, unless cured or waived, become an Event of
Default.
"Department" means, with respect to an Insurance
Subsidiary, the Governmental Authority responsible for the
regulation of the insurance business in its state of domicile.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in New York City are
authorized by law to close.
"Domestic Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Domestic
Lending Office" on the signature pages hereof or in the Assignment
and Acceptance pursuant to which it became a Lender, or such other
office of such Lender as such Lender may from time to time specify
to SunAmerica and the Agent.
"Effective Date" has the meaning set forth in Section 4.1.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any State thereof, and
having a combined capital and surplus of at least $500,000,000;
(ii) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, and
having a combined capital and surplus of at least $500,000,000;
(iii) a commercial bank organized under the laws of any other
country which is a member of the OECD, or has concluded special
lending arrangements with the International Monetary Fund
associated with its General Arrangements to Borrow, or a political
subdivision of any such country, and having a combined capital and
surplus of at least $500,000,000, provided that, in the case of
clause (iii), such bank is acting through a branch or agency
located in the United States and, in the case of clauses (i)
through (iii), such institution has a senior secured long term
debt rating of at least "BBB-" or above by Standard & Poor's or
"Baa3" or above by ▇▇▇▇▇'▇; (iv) a finance company, insurance
company or other financial institution or fund organized under the
laws of the United States, or any State thereof, which is engaged
in making, purchasing or otherwise investing in commercial loans
in the ordinary course of its business and which has total assets
in excess of $5,000,000,000, provided that any such Person under
this clause (iv) is acceptable to SunAmerica in its discretion;
and (v) any other Person who is acceptable to SunAmerica and the
Agent or is an Affiliate of a Person identified in clause (i),
(ii) or (iii) or above; provided that no Affiliate of SunAmerica
shall be an Eligible Assignee hereunder.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"ERISA Group" means SunAmerica and all members of a
controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together
with SunAmerica, are treated as a single employer under Section
414 of the Code.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Eurodollar Advance" means an Advance that bears interest
as provided in Section 2.7(b).
"Eurodollar Business Day" means any Domestic Business Day
on which commercial banks are open for international business
(including dealings in dollar deposits) in London.
"Eurodollar Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Eurodollar
Lending Office" on the signature page hereto or in the Assignment
and Acceptance pursuant to which it became a Lender (or, if no
such office is specified, its Domestic Lending Office), or such
other office of such Lender as such Lender may from time to time
specify to SunAmerica and the Agent.
"Eurodollar Margin" has the meaning set forth in Section
2.7(b).
"Eurodollar Reference Banks" means Citibank, Chemical Bank
and The First National Bank of Chicago, or any successor thereto.
"Eurodollar Reserve Percentage" means, for any day, that
percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement for a member bank of the Federal Reserve
system in New York City with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" under Regu-
lation D (including any category of extensions of credit or other
assets in respect of "Eurocurrency Liabilities" that includes
loans by a non-United States office of any Lender to United States
residents).
"Event of Default" has the meaning set forth in Section
9.1.
"Exchange Act" means the Securities Exchange Act of 1934
and the rules and regulations of the Securities and Exchange
Commission thereunder, all as the same shall be in effect from
time to time.
"Existing Credit Agreements" means the Existing
$60,000,000 Credit Agreement and the Existing $90,000,000 Credit
Agreement.
"Existing $90,000,000 Credit Agreement" means the Credit
Agreement dated as of February 1, 1993 among the Borrowers, the
Lenders, and the Agent providing a $90,000,000 revolving credit
facility for the Borrowers as amended by the first amendment
thereto dated as of January 30, 1994 and the second amendment
thereto dated as of December 12, 1994.
"Existing $60,000,000 Credit Agreement" means the Credit
Agreement dated as of February 1, 1993 among the Borrowers, the
Lenders, and the Agent providing a $60,000,000 revolving credit
facility for the Borrowers as amended by the first amendment
thereto dated as of January 30, 1994 and the second amendment
thereto dated as of December 12, 1994.
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upward, if necessary, to the nearest 1/100th of 1%)
equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day, provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic
Business Day, and (ii) if no such rate is so published on such
next succeeding Domestic Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to Citibank on such day
on such transactions as determined by the Agent.
"First Sun" means First SunAmerica Life Insurance Company,
a New York stock life insurance company.
"Fixed Rate Advances" means Eurodollar Advances or Money
Market Advances (excluding Money Market LIBOR Advances bearing
interest at the Base Rate pursuant to Section 3.1) or any com-
bination of the foregoing.
"GAAP" means generally accepted accounting principles in
the United States of America used in connection with the
preparation of the financial statements referred to in Section
5.6(b).
"Governmental Authority" means any nation or government,
any state or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of government.
"Insurance Code" means the Insurance Code of the state
where any Insurance Subsidiary is domiciled or doing insurance
business and any successor statute of similar import, together
with the regulations thereunder, as amended or otherwise modified
and in effect from time to time.
"Insurance Subsidiaries" means Anchor, First Sun and
SunAmerica Life so long as they are Subsidiaries of any Borrower
and any other Subsidiary of any Borrower that holds one or more
Licenses to conduct an insurance business.
"Interest Period" means:
(a) with respect to each Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending 1, 2, 3 or 6
months thereafter, as the applicable Borrower may elect in the
applicable Notice of Borrowing, provided that:
(i) any Interest Period that would otherwise end on
a day that is not a Eurodollar Business Day shall be
extended to the next succeeding Eurodollar Business Day
unless such Eurodollar Business Day falls in another
calendar month, in which case such Interest Period shall
end on the next preceding Eurodollar Business Day; and
(ii) any Interest Period that begins on the last
Eurodollar Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall
end on the last Eurodollar Business Day of a calendar
month;
(b) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending any number of
days thereafter up to 30, as the applicable Borrower may elect in
the applicable Notice of Borrowing, provided that such Interest
Period shall end on a Domestic Business Day; and
(c) with respect to (x) any Money Market Absolute Rate
Advance, the period commencing on the date of such Borrowing and
ending such number of days thereafter (but not less than 7 nor
more than 180 days) or (y) any Money Market LIBOR Advance, the
period commencing on the date of such Borrowing and ending 1, 2,
3, or 6 months thereafter, in each case as the applicable Borrower
shall select in the applicable Notice of Borrowing, provided that
such Interest Period shall end on a Domestic Business Day or
Eurodollar Business Day, as the case may be;
provided that with respect to clauses (a), (b) and (c) above:
(i) the Borrowers may not select any Interest Period
that ends after the Termination Date; and
(ii) Interest Periods commencing on the same date for
Advances comprising part of the same Borrowing shall be of
the same duration.
"Investment" shall mean any investment in any Person,
whether by means of share purchase, capital contribution, loan,
time deposit or otherwise.
"Investment Grade Securities" shall mean non-equity
securities that are rated "BBB-" or better by Standard & Poor's or
"Baa3" or better by Moody's or "1" or "2" by the NAIC.
"Lenders" means each of the financial institutions
identified as such on the signature pages hereof and their
successors and assigns.
"Level I Status" means that, at 8:30 a.m. New York City
time at any date of determination, SunAmerica's senior unsecured
long term debt is rated "A-" or better by Standard & Poor's and
"Baa1" or better by Moody's.
"Level II Status" means that, at 8:30 a.m. New York City
time at any date of determination, SunAmerica's senior unsecured
long term debt is rated "BBB+" or better by Standard & Poor's and
"Baa2" or better by Moody's, but Level I Status does not exist.
"Level III Status" means that, at 8:30 a.m. New York City
time at any date of determination, SunAmerica's senior unsecured
long term debt is rated below Level II Status or is not rated as
of such date by Standard & Poor's or Moody's.
"Liabilities" means all obligations of the Borrowers to
the Lenders or the Agent which arise out of or in connection with
this Agreement or the Notes.
"LIBOR Auction" means a solicitation of Money Market
quotes setting forth Money Market Margins based on the London
Interbank Offered Rate pursuant to Section 2.3.
"License" has the meaning set forth in Section 5.18.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind
in respect of such asset. For the purposes of this Agreement, a
Person shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, Capital Lease or
other title retention agreement relating to such asset.
"London Interbank Offered Rate" has the meaning set forth
in Section 2.7(b).
"Material Adverse Change" or "Material Adverse Effect"
means any change, event, action, condition or effect that
individually or in the aggregate (i) materially and adversely
affects the consolidated business, condition (financial or
otherwise), operations, performance, properties or prospects of
the Borrowers and their Subsidiaries taken as a whole or (ii)
materially and adversely impairs the ability of the Borrowers
collectively to perform their obligations under this Agreement.
"Material Subsidiary" means Anchor and SunAmerica Life so
long as they are Subsidiaries of any Borrower and any other
Subsidiary of any Borrower now existing or hereafter acquired or
formed that for or as of the end of SunAmerica's most recent
fiscal year had (i) pretax income in excess of 10% of the
consolidated pretax income of SunAmerica reflected in its
consolidated financial statements for its most recent fiscal year
or (ii) assets in excess of 10% of the consolidated assets of
SunAmerica reflected in its consolidated financial statements as
of the end of its most recent fiscal year.
"Money Market Absolute Rate" has the meaning set forth in
Section 2.3(d).
"Money Market Absolute Rate Advance" means an Advance to
be made by a Lender pursuant to an Absolute Rate Auction.
"Money Market Advance" means a Money Market LIBOR Advance
or a Money Market Absolute Rate Advance.
"Money Market Borrowing" means a Borrowing consisting of
Money Market Advances.
"Money Market Lending Office" means, as to each Lender,
its Domestic Lending Office or such other office, branch or
affiliate of such Lender as it may hereafter designate as its
Money Market Lending Office by notice to SunAmerica and the Agent,
provided that any Lender may from time to time by notice to
SunAmerica and the Agent designate separate Money Market Lending
Offices for its Money Market LIBOR Advances and its Money Market
Absolute Rate Advances, in which case all references herein to the
Money Market Lending office of such Lender shall be deemed to
refer to either or both of such offices, as the context may
require.
"Money Market LIBOR Advance" means an Advance to be made
by a Lender pursuant to a LIBOR Auction (including such an Advance
bearing interest at the Base Rate pursuant to Section 3.1).
"Money Market Margin" has the meaning set forth in Section
2.3(d).
"Money Market Quote" means an offer by a Lender to make a
Money Market Advance in accordance with Section 2.3.
"Money Market Reduction" has the meaning set forth in
Section 2.1.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any
successor thereto.
"Multiemployer Plan" means a Plan described in Section
4001(a)(3) of ERISA.
"NAIC" means the National Association of Insurance
Commissioners.
"Note" means a promissory note of the Borrowers payable to
the order of any Lender, in substantially the form of Exhibit A
hereto, evidencing the aggregate indebtedness of the Borrowers to
such Lender resulting from the Advances made by such Lender.
"Notice of Borrowing" means a Notice of Committed
Borrowing (as defined in Section 2.2) or a Notice of Money Market
Borrowing (as defined in Section 2.3(f)).
"PBGC" means the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"Permitted Collateralization Assets" means assets pledged
to secure Permitted Collateralization Obligations.
"Permitted Collateralization Obligations" means the
collateralized obligations of the Borrowers and their Subsidiaries
relating to (i) real estate mortgage investment conduits (REMICs),
passthrough obligations, collateralized mortgage obligations,
collateralized bond and loan obligations, other asset-backed
securitizations of properties, rights or receivables of SunAmerica
or its Subsidiaries, or similar instruments, except any such
collateralized obligations to the extent such collateralized
obligations require a cash payment by any Borrower or its
Subsidiary (other than advances in connection with the servicing
of any such REMIC, pass-through obligation, collateralized
mortgage obligation, collateralized bond obligation or similar
instrument or payments to repurchase collateral), recourse for the
payment of which is not limited to the specific assets of such
Borrower or such Subsidiary serving as collateral for such obliga-
tions, (ii) the securitization of Rule 12b-1 fee income under the
Investment Company Act of 1940, as amended, and associated sales
charges earned by the Borrowers or their Subsidiaries, except any
such securitization to the extent such securitization requires a
cash payment by any Borrower or its Subsidiary (other than
payments that may be required upon the occurrence of certain
events, the occurrence of which is considered unlikely by
management of SunAmerica), recourse for the payment of which is
not limited to such Rule 12b.1 fees or sales charges and (iii) the
Receivables Purchase and Sale Agreement, dated as of November 30,
1994 among IPF Funding Corp, as Seller, Corporate Asset Funding
Company Inc., Preferred Receivables Funding Corporation and WCP
Funding, Inc., as Investors, The First National Bank of Chicago,
as Agent, and Citicorp North America, Inc., as Agent and Facility
Agent, the Agreement dated January 31, 1995 to Purchase
$65,000,000 of Certificates Issued by a Grantor Trust Organized by
Rockford Limited I and the $100,000,000 Receivables Purchase and
Sale Agreement dated as of September 22, 1995 among SunAmerica
Life Insurance Company, as Seller and Initial Collection Agent,
WCP Funding, Inc., as Investor, and Westdeutsche Landesbank
Girozentrale, New York Branch, as Agent and the Administrator, in
each case as amended from time to time, provided that no such
amendment shall make any material change in the provisions of said
agreements relating to or limiting recourse.
"Permitted Liens" has the meaning set forth in Section
7.1.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Plan" means, at any time, an employee pension benefit
plan (other than a Multiemployer Plan) that is subject to Title IV
of ERISA or the minimum funding standards under Section 412 of the
Internal Revenue Code and is maintained, or contributed to, by any
member of the ERISA Group.
"Register" has the meaning set forth in Section 11.7(c).
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from time to
time.
"Required Lenders" means Lenders having more than 66 2/3%
of the Commitments, or if the Commitments have terminated or
expired, more than 66 2/3% of the aggregate principal amount of
the Advances outstanding at such time.
"Responsible Officer" means any of the following officers
of any Borrower: the chairman, the chief executive officer, the
president, the chief financial officer, the chief operating
officer, the chief investment officer or the treasurer. If any of
the titles of the preceding officers are changed after the date
hereof, the term "Responsible Officer" shall thereafter mean any
officer performing substantially the same functions as are
presently performed by one or more of the officers listed in the
first sentence of this definition.
"Risk-Based Capital Ratio" means, with respect to any
Insurance Subsidiary, the ratio computed in accordance with the
Risk Based Capital Formula for life insurance companies as adopted
by the NAIC and in effect on December 6, 1992 and as amended to
and in effect on the date hereof.
"SAFI" means SunAmerica Financial, Inc., a Georgia
corporation.
"SAP" means, as to any Insurance Subsidiary, the statutory
accounting practices prescribed or permitted by the applicable
Department.
"Standard & Poor's" or "S&P" means Standard & Poor's
Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc. and any successor
thereto.
"Subsidiary" means, as to any Person, any corporation,
partnership, joint venture, trust, association or other
unincorporated organization of which or in which such Person and
such Person's Subsidiaries own directly or indirectly more than
50% of (i) the combined voting power of all classes then
outstanding of Voting Stock, if it is a corporation, (ii) the
capital interest or partnership interest, if it is a partnership,
joint venture or similar entity, or (iii) the beneficial interest,
if it is a trust, association or other unincorporated
organization, provided that (a) no Person of which any Borrower or
any of its Subsidiaries acquires or has acquired control in the
ordinary course of its business in connection with or as a
consequence of any debt or equity financing shall be deemed a
Subsidiary and (b) no Person (including a joint venture) which has
been organized by any Borrower or any of its Subsidiaries solely
for the purpose of making or holding an individual asset or group
of related assets and has no other operations or independent
management shall be deemed a Subsidiary, unless such Person (1) is
or under GAAP should be treated as a consolidated subsidiary of
SunAmerica in the preparation of its consolidated financial
statements and (2) would also be classified as a Material
Subsidiary.
"SunAmerica" means SunAmerica Inc., a Maryland
corporation.
"SunAmerica Life" means SunAmerica Life Insurance Company,
an Arizona stock insurance company.
"Termination Date" means October 27, 1998 or the earlier
date of termination in whole of the Commitments pursuant to
Section 2.10 or 9.1.
"Total Invested Assets" means, as of any date of
determination, the amount of invested assets directly owned by the
Borrowers, excluding Investments in Affiliates, and reflected in
the line "Total Investments" on the balance sheet of the
Borrowers, as a group, delivered pursuant to Section 6.1(c), such
amount to be calculated on a basis consistent with the preparation
of the consolidating balance sheet as of June 30, 1995 delivered
to the Lenders and attached as Exhibit H hereto.
"Type" refers to the distinction between Advances bearing
interest at the Eurodollar Rate, Base Rate or a Money Market Quote
rate.
"U.S. Withholding Taxes" has the meaning set forth in
Section 2.17(a).
"Voting Stock" means, with respect to any Person, any
class of capital stock of such Person normally entitled to vote
for the election of directors.
SECTION 1.2 Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the
words "to" and "until" mean "to but excluding."
SECTION 1.3 Accounting Terms. All accounting terms not
specifically defined herein other than those used solely in respect of an
Insurance Subsidiary shall be construed in accordance with GAAP. All
accounting terms not specifically defined herein and used solely in respect
of an Insurance Subsidiary shall, unless GAAP is otherwise specified, be
construed in accordance with SAP applicable to that Insurance Subsidiary.
SECTION 1.4 Convention Statement. In the event any
amendment to the form of or requirements for Convention Statements causes
the calculation of the Risk-Based Capital Ratio as adopted by the NAIC on
December 6, 1992 and as amended to and in effect on the date hereof to be
impracticable or to produce results that do not reflect the original intent
of the parties hereto, the provisions of this Agreement relating to the
Risk Based Capital Ratio shall be adjusted as the Required Lenders and
Borrowers in good faith may negotiate to insure that the operation of the
affected provisions of this Agreement after such amendment is consistent
with the operation prior thereto.
ARTICLE II
THE ADVANCES
SECTION 2.1 Commitments to Lend. Each Lender severally
agrees, on the terms and conditions set forth in this Agreement, to make
Advances constituting Committed Advances from time to time during the
period from the Effective Date to the Termination Date in an aggregate
amount not to exceed at any time outstanding the amount of such Lender's
Commitment, provided that the aggregate amount of the Commitments shall be
deemed used from time to time, for purposes of making Committed Advances
pursuant to this Section 2.1, in the aggregate amount of Money Market
Advances outstanding from time to time, and such deemed use of the
aggregate amount of Commitments shall be applied to the Lenders ratably
according to their respective Commitments (such deemed use of the aggregate
amount of Commitments referred to herein as the "Money Market Reduction").
Each Borrowing under this Section 2.1 in respect of such Committed Advances
shall be in an aggregate principal amount of $10,000,000 or any larger
multiple of $5,000,000 (except that any such Borrowing may be in the
aggregate amount available in accordance with Section 4.2(d)), and shall be
made from the several Lenders ratably in proportion to their respective
Commitments. Within the foregoing limits, the Borrowers may borrow under
this Section, repay, or to the extent permitted by Section 2.12, prepay
Advances and reborrow at any time during the period from the Effective Date
to the Termination Date.
SECTION 2.2 Notice of Committed Borrowings. The
applicable Borrower shall give the Agent notice (a "Notice of Committed
Borrowing"), in substantially the form of Exhibit B hereto, not later than
(x) 11:00 A.M. New York City time on the date of each Base Rate Borrowing
and (y) 12:00 P.M. New York City time on the third Eurodollar Business Day
before each Eurodollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Eurodollar
Business Day in the case of a Eurodollar Borrowing;
(b) the aggregate amount of such Borrowing;
(c) whether the Advances comprising such Borrowing are to be
Base Rate Advances or Eurodollar Advances;
(d) whether Level I Status, Level II Status or Level III
Status exists on the date of such notice; and
(e) the duration of the Interest Period with respect
thereto, subject to the provisions of the definition of Interest
Period.
SECTION 2.3 Money Market Borrowings. (a) The Money
Market Option. Each Borrower may, as set forth in this Section 2.3,
request the Lenders before the Termination Date to make offers to make
Money Market Advances to such Borrower. The Lenders may, but shall have no
obligation to, make such offers and such Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this
Section. A Lender lending to the Borrower pursuant to an accepted offer to
make Money Market Advances shall remain obligated to make Committed
Advances in proportion to its respective Commitment within the limitations
of Section 4.2(d).
(b) Money Market Quote Request. When a Borrower wishes to
request offers to make Money Market Advances under this Section 2.3, it
shall transmit to the Agent by telex or facsimile telecopy a Money Market
Quote Request substantially in the form of Exhibit C hereto so as to be
received no later than 11:00 A.M. New York City time (x) on the fifth
Eurodollar Business Day prior to the date of Borrowing proposed therein, in
the case of a LIBOR Auction, or (y) on the Domestic Business Day next
preceding the date of Borrowing proposed therein, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
requesting Borrower and the Agent shall have mutually agreed and shall have
notified to the Lenders not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective), specifying:
(i) the proposed date of Borrowing, which shall be a
Eurodollar Business Day in the case of a LIBOR Auction or a
Domestic Business Day in the case of an Absolute Rate Auction;
(ii) the aggregate amount of such Borrowing, which shall be
$10,000,000 or a larger multiple of $5,000,000 (except that such
Borrowing may be in the aggregate amount available in accordance
with Section 4.2(d));
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period;
and
(iv) whether the Money Market Quotes requested are to set forth
a Money Market Margin or a Money Market Absolute Rate.
The Borrowers may request offers to make Money Market Advances for more
than one Interest Period in a single Money Market Quote Request. No Money
Market Quote Request shall be given within 5 Eurodollar Business Days in
the case of a LIBOR Auction or 5 Domestic Business Days in the case of an
Absolute Rate Auction (or such other number of days as SunAmerica and the
Agent may agree) of any other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt
of a Money Market Quote Request, the Agent shall send to the Lenders by
telex or facsimile telecopy an Invitation for Money Market Quotes substan-
tially in the form of Exhibit D hereto, which shall constitute an
invitation by the requesting Borrower to each Lender to submit Money Market
Quotes offering to make the Money Market Advances to which such Money
Market Quote Request relates in accordance with this Section 2.3.
(d) Submission and Contents of Money Market Quotes.
(i) Each Lender may submit a Money Market Quote containing an offer or
offers to make Money Market Advances in response to any Invitation for
Money Market Quotes. Each Money Market Quote must comply with the
requirements of this subsection (d) and must be submitted to the Agent by
facsimile telecopy at its offices specified in or pursuant to Section 11.2
not later than (x) 2:00 P.M. New York City time on the fourth Eurodollar
Business Day prior to the proposed date of Borrowing, in the case of a
LIBOR Auction or (y) 10:00 A.M. New York City time on the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the requesting Borrower and the Agent shall have
mutually agreed to and shall have notified to the Lenders not later than
the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective), provided
that Money Market Quotes submitted by the Agent (or any Affiliate of the
Agent) in the capacity of a Lender may be submitted, and may only be
submitted, if the Agent or such Affiliate notifies the requesting Borrower
of the terms of the offer or offers contained therein not later than (x)
one hour prior to the deadline for the other Lenders, in the case of a
LIBOR Auction, or (y) 15 minutes prior to the deadline for the other
Lenders, in the case of an Absolute Rate Auction. Subject to Articles IV
and IX, any Money Market Quote so made shall be irrevocable except with the
written consent of the Agent given on the instructions of the requesting
Borrower.
(ii) Each Money Market Quote shall be in substantially the form
of Exhibit E hereto and shall in any case specify:
(A) the proposed date of Borrowing and the Interest Period
therefor;
(B) the principal amount of the Money Market Advance for
which each such offer is being made, which principal amount (w)
may be greater than or less than the Commitment of the quoting
Lender, (x) must be $5,000,000 or a larger multiple of $1,000,000,
(y) may not exceed the principal amount of Money Market Advances
for which offers were requested and (z) may be subject to an
aggregate limitation as to the principal amount of Money Market
Advances for which offers being made by such quoting Lender may be
accepted;
(C) in the case of a LIBOR Auction, the margin above or
below the applicable London Interbank Offered Rate (the "Money
Market Margin") offered for each such Money Market Advance,
expressed as a percentage (specified to the nearest 1/10,000th of
1%) to be added to or subtracted from such applicable rate;
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%)
(the "Money Market Absolute Rate") offered for each such Money
Market Advance; and
(E) the identity of the quoting Lender.
A Money Market Quote may set forth up to five separate offers by the
quoting Lender with respect to each Interest Period specified in the
related Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit E
hereto or does not specify all of the information required by
subsection (d)(ii);
(B) contains qualifying, conditional or similar
language or, in particular, is conditioned on acceptance by the
requesting Borrower of all or some specified minimum principal
amount of the Money Market Advance for which such Money Market
Quote is being made;
(C) proposes terms other than or in addition to those
set forth in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection
(d)(i).
(e) Notice to Borrower. The Agent shall notify the
requesting Borrower promptly of the terms (i) of any Money Market Quote
submitted by a Lender that is in accordance with subsection (d) and (ii) of
any Money Market Quote that amends, modifies or is otherwise inconsistent
with a previous Money Market Quote submitted by such Lender with respect to
the same Money Market Quote Request. Any such subsequent Money Market
Quote shall be disregarded by the Agent unless such subsequent Money Market
Quote is submitted solely to correct a manifest error in such former Money
Market Quote. The Agent's notice to the requesting Borrower shall specify
(A) the aggregate principal amount of Money Market Advances for which
offers have been received for each Interest Period specified in the related
Money Market Quote Request, (B) the respective principal amounts and Money
Market Margins or Money Market Absolute Rates so offered and (C), if
applicable, limitations on the aggregate principal amount of Money Market
Advances for which offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 11:00
A.M. New York City time on (x) the third Eurodollar Business Day prior to
the proposed date of Borrowing, in the case of LIBOR Auction, or (y) the
proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the requesting Borrower and the
Agent shall have mutually agreed to and shall have notified to the Lenders
not later than the date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be
effective), the requesting Borrower shall notify the Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
subsection (e), and the failure of such Borrower to provide such notice in
accordance with this clause (f) shall constitute the non-acceptance of such
offers. In the case of acceptance, such notice (a "Notice of Money Market
Borrowing") shall specify the aggregate principal amount of offers for each
Interest Period that are accepted. The requesting Borrower may accept any
Money Market Quote in whole or in part, provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request;
(ii) the principal amount of each Money Market Borrowing must
be $10,000,000 or a larger multiple of $5,000,000 (except that any
such Borrowing may be in the aggregate amount available in
accordance with Section 4.2(d));
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as
the case may be; and
(iv) the requesting Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise fails to comply
with the requirements of this Agreement.
Promptly after receipt by the Agent of the notice of acceptance from the
Borrowers pursuant to this subsection (f), the Agent will notify each
Lender of the amount of the Money Market Borrowing and the amount of the
consequent pro rata Money Market Reduction in its Commitment and the dates
upon which such Money Market Reduction commenced and will terminate.
(g) Allocation by Agent. If offers are made by two or more
Lenders with the same Money Market Margins or Money Market Absolute Rates,
as the case may be, for a greater aggregate principal amount than the
amount in respect of which such offers are accepted for the related
Interest Period, the principal amount of Money Market Advances in respect
of which such offers are accepted shall be allocated by the Agent among
such Lenders as nearly as possible (in multiples of $1,000,000, as the
Agent may deem appropriate) in proportion to the aggregate principal
amounts of such offers. Determinations by the Agent of the amount of Money
Market Advances shall be conclusive in the absence of manifest error.
SECTION 2.4 Notice to Lenders; Funding of Advances.
(a) Upon receipt of a Notice of Borrowing, the Agent shall promptly notify
each Lender of the contents thereof and of such Lender's share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the requesting Borrower.
(b) Not later than 1:00 P.M. New York City time on the date of
each Borrowing, each Lender participating therein shall (except as provided
in subsection (c) of this Section) make available its share of such Borrow-
ing, in Federal or other funds immediately available in New York City, to
the Agent at its address specified in or pursuant to Section 11.2. Unless
the Agent determines that any applicable condition specified in Article IV
has not been satisfied, the Agent will make the funds so received from the
Lenders available to the Borrowers at the Agent's aforesaid address for the
account of the Borrowers or to such other account as any Borrower may
specify.
(c) The Borrowers may refinance all or any part of any
Borrowing with a Borrowing of the same or a different Type (e.g., Money
Market Borrowings may be refinanced with, or may be used to refinance,
Committed Borrowings) provided the conditions specified in Article IV have
been satisfied. Any Borrowing or part thereof so refinanced shall be
deemed to be repaid with the proceeds of the new Borrowing hereunder. If
any Lender makes a new Advance hereunder on a day on which the applicable
Borrower is to repay all or any part of an outstanding Advance from such
Lender, such Lender shall apply the proceeds of its new Advance to make
such repayment and only an amount equal to the excess (if any) of the
amount being borrowed over the amount being repaid shall be made available
by such Lender to the Agent as provided in subsection (b). To the extent
any Lender fails to pay the Agent amounts due from it pursuant to this
subsection (c), the Borrowers shall not be deemed to be overdue in respect
of their obligation to make the relevant payment until one Domestic
Business Day after SunAmerica shall have received notice from the Agent of
the failure of such Lender to make such payment.
(d) Unless the Agent shall have received notice from a Lender
prior to the date of any Borrowing that such Lender will not make available
to the Agent such Lender's share of such Borrowing, the Agent may assume
that such Lender has made such share available to the Agent on the date of
such Borrowing in accordance with subsections (b) and (c) of this Section
2.4 and the Agent may, in reliance upon such assumption, make available to
the applicable Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such share available to the
Agent, such Lender and the applicable Borrower severally agree to repay to
the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available
to such Borrower until the date such amount is repaid to the Agent, at the
Federal Funds Rate. If such Lender shall repay to the Agent such cor-
responding amount, such amount so repaid shall constitute such Lender's
Advance included in such Borrowing for purposes of this Agreement. The
failure of any Lender to make any Advance to be made by it on the date
specified therefor shall not relieve any other Lender of any obligation to
make an Advance on such date, but no Lender shall be responsible for the
failure of any other Lender to make an Advance to be made by such other
Lender.
SECTION 2.5 Notes. (a) The Advances of each Lender to
any Borrower shall be evidenced by a single Note of the Borrowers, jointly
and severally, payable to the order of such Lender in an amount equal to
the aggregate unpaid principal amount of all such Lender's Advances to the
Borrowers.
(b) Each Lender may, by notice to the Borrowers and the Agent
but at no cost to the Borrowers, request that its Advances of a particular
Type be evidenced by a separate Note in an amount equal to the aggregate
unpaid principal amount of such Advances. Each such Note shall be in
substantially the form of Exhibit A hereto with appropriate modifications
to reflect the fact that it evidences solely Advances of the relevant Type.
Each reference in this Agreement to the "Note" of such Lender shall be
deemed to refer to and include any or all of such Notes, as the context may
require.
(c) Upon receipt of each Lender's Notes pursuant to Section
4.1(a), the Agent shall mail such Note to such Lender by overnight courier
or registered mail. Each Lender shall record the date, amount, type and
maturity of each Advance made by it and the date and amount of each payment
of principal made by any Borrower with respect thereto, and prior to any
transfer of its Note or Notes shall endorse on the schedule forming a part
thereof appropriate notations to evidence the foregoing information with
respect to each such Advance then outstanding, provided that the failure of
any Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrowers hereunder or under the Notes. Each Lender is
hereby irrevocably authorized by each Borrower so to endorse its Notes and
to attach to and make a part of its Notes a continuation of any such
schedule as and when required.
SECTION 2.6 Maturity of Advances. Each Advance included
in any Borrowing shall mature, and the principal amount thereof shall be
due and payable, on the last day of the Interest Period applicable to such
Borrowing.
SECTION 2.7 Interest Rates. (a) Each Base Rate Advance
shall bear interest on the outstanding principal amount thereof, for each
day from the date such Advance is made until it becomes due, at a rate per
annum equal to the Base Rate for such day. Such interest shall be payable
for each Interest Period on the last day thereof. Any overdue principal of
or interest on any Base Rate Advance shall bear interest, payable on
demand, for each day it remains unpaid at a rate per annum equal to the sum
of 2% plus the rate otherwise applicable to Base Rate Advances for such
day.
(b)(i) Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Eurodollar Margin plus
the applicable London Interbank Offered Rate. Such interest shall be
payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than 3 months, 3 months after the first day
thereof.
"Eurodollar Margin" means (1) 0.23% for any day on which
Level I Status exists, (2) 0.30% for any day on which Level II Status and
(3) 0.425% for any day on which Level III Status exists.
The "London Interbank Offered Rate" applicable to any
Interest Period means the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which deposits
in dollars are offered to each of the Eurodollar Reference Banks in the
London interbank market at approximately 11:00 A.M. London time 2 Eurodol-
lar Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Eurodollar Advance of
such Eurodollar Reference Bank to which such Interest Period is to apply
and for a period of time comparable to such Interest Period.
(ii) Any overdue principal of or interest on any Eurodollar
Advance shall bear interest, payable on demand, for each day from and
including the date payment thereof was due to but excluding the date of
actual payment, at a rate per annum equal to the sum of 2% plus the
Eurodollar Margin applicable on such day plus the higher of (x) the London
Interbank Offered Rate applicable to such Advance and (y) the quotient
obtained (rounded upward, if necessary, to the next higher 1/100 of 1%) by
dividing (A) the average (rounded upward, if necessary, to the next higher
1/16 of 1%) of the respective rates per annum at which one day (or, if such
amount due remains unpaid more than 3 Eurodollar Business Days, then for
such other period of time not longer than 3 months as the Agent may select)
deposits in dollars in an amount approximately equal to such overdue
payment due to each of the Eurodollar Reference Banks are offered to such
Eurodollar Reference Bank in the London interbank market for the applicable
period determined as provided above by (B) 1.00 minus the Eurodollar
Reserve Percentage (or, if the circumstances described in clause (a) or (b)
of Section 3.1 shall exist, at a rate per annum equal to the sum of 2% plus
the rate applicable to Base Rate Advances for such day).
(c) Subject to Section 3.1, each Money Market LIBOR Advance
shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the sum of
the London Interbank Offered Rate for such Interest Period (determined in
accordance with Section 2.7(b) as if the related Money Market LIBOR
Borrowing were a Committed Borrowing) plus the Money Market Margin quoted
by the Lender making such Advance in accordance with Section 2.3. Each
Money Market Absolute Rate Advance shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a
rate per annum equal to the Money Market Absolute Rate quoted by the Lender
making such Advance in accordance with Section 2.3. Such interest shall be
payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than 90 days, on the 90th day of such Interest
Period. Any overdue principal of or interest on any Money Market Advance
shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the Base Rate for such day.
(d) The Agent shall determine each interest rate applicable to
the Advances hereunder. The Agent shall give prompt notice to the
applicable Borrower and the participating Lenders by facsimile of each rate
of interest so determined, and its determination thereof shall be conclu-
sive in the absence of manifest error. If the rating system of Moody's or
Standard and Poor's shall change in a manner that causes the definition of
"Level I Status", "Level II Status" or "Level III Status" no longer to
have its intended meaning hereunder, or if any such rating agency shall
have ceased to rate corporate debt obligations of SunAmerica for any reason
other than action or inaction on the part of the Borrowers, at the request
of the Borrowers, the Borrowers, the Agent and the Lenders shall negotiate
in good faith to amend the references to specific ratings in the definition
of "Level I Status", "Level II Status" and "Level III Status" to reflect
such changed rating system or the non-availability of ratings from such
rating agency.
(e) Each Reference Bank agrees to use its best efforts to
furnish quotations to the Agent as contemplated by this Section 2.7. If
any Reference Bank does not furnish a timely quotation, the Agent shall
determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or Banks or, if none
of such quotations is available on a timely basis, the provisions of
Section 3.1 shall apply.
SECTION 2.8 Fees.
(a) Facility Fee. The Borrowers shall pay to the Agent for
the account of the Lenders ratably a facility fee at the following rates
per annum: (i) 0.07% for any day on which Level I Status exists,
(ii) 0.10% for any day on which Level II Status exists and (iii) 0.175% for
any day on which Level III Status exists. Such facility fee shall accrue
from the Effective Date to the Termination Date (or, if all Advances have
not been repaid in full on the Termination Date, to the date such Advances
are repaid) on the daily average of the aggregate amount of Commitments
(without giving effect to any Money Market Reductions), or, if greater, on
the daily average of the outstanding principal amount of Advances.
(b) Additional Utilization Fee. The Borrowers shall pay to
the Agent for the account of the Lenders ratably in proportion to the
aggregate outstanding principal amount of Advances under this Agreement an
additional utilization fee at the rate of 0.10% per annum on the aggregate
principal amount of all Advances under this Agreement then outstanding for
any day on which both (i) such aggregate outstanding principal amount of
Advances exceeds 33 1/3% of the sum of the Commitments as of such date and
(ii) Level III Status exists.
(c) Payments. Accrued fees under this Section 2.8 shall be
calculated on a 360 day basis and shall be payable quarterly in arrears on
each March 15, June 15, September 15 and December 15 and upon the Ter-
mination Date (and, if later, the date the Advances shall be repaid in
their entirety).
SECTION 2.9 Regulation D Compensation. For so long as
any Lender maintains reserves against "Eurocurrency liabilities" (or any
other category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Advances or Money Market LIBOR Advances is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of such Lender to United
States residents), and as a result the cost to such Lender (or its
Eurodollar Lending Office or Money Market Lending Office, as the case may
be) of making or maintaining its Eurodollar Advances or Money Market LIBOR
Advances is increased, then such Lender may require the Borrowers to pay,
contemporaneously with each payment of interest on the Eurodollar Advances
or Money Market LIBOR Advances, additional interest on the related
Eurodollar Advance or Money Market LIBOR Advance of such Lender at a rate
per annum up to but not exceeding the excess of (i) (A) the applicable
London Interbank Offered Rate divided by (B) one minus the Eurodollar
Reserve Percentage over (ii) the applicable London Interbank Offered Rate.
Any Lender wishing to require payment of such additional interest (x) shall
so notify SunAmerica, on behalf of the Borrowers, and the Agent, in which
case such additional interest on the Eurodollar Advances and Money Market
LIBOR Advances of such Lender shall be payable to such Lender at the place
indicated in such notice with respect to each Interest Period commencing at
least 3 Eurodollar Business Days after the giving of such notice and (y)
shall furnish to such Borrower at least 5 Eurodollar Business Days prior to
each date on which interest is payable on the Eurodollar Advances or Money
Market LIBOR Advances an officer's certificate setting forth in reasonable
detail the amount to which such Lender is then entitled under this Section
2.9 (which shall be consistent with such Lender's good faith estimate of
the level at which the related reserves are maintained by it and shall be
conclusive and binding absent manifest error) and the calculations used in
determining such amount.
SECTION 2.10 Optional Termination or Reduction of
Commitments. At any time prior to the Termination Date, the Borrowers may,
upon at least 3 Domestic Business Days' notice to the Agent, (a) terminate
the Commitments in full, if no Advances are outstanding at such time, or
(b) reduce from time to time by (i) an aggregate amount of $5,000,000 or
any larger multiple of $5,000,000 or (ii) the full amount thereof, the
aggregate amount of the Commitments in excess of the aggregate outstanding
principal amount of the Advances. The Lenders' Commitments will be
terminated or ratably reduced, as the case may be.
SECTION 2.11 Mandatory Termination or Reduction of the
Commitments. The Commitments shall terminate on the Termination Date and
any Advances then outstanding (together with accrued interest thereon)
shall be due and payable on such date.
SECTION 2.12 Optional Prepayments. (a) The Borrowers
may upon at least one Domestic Business Day's or Eurodollar Business Day's
notice to the Agent, as the case may be, at any time and from time to time
prepay any Base Rate Borrowing (or any Money Market Borrowing bearing in-
terest at the Base Rate pursuant to Section 3.4) or, subject to Section
2.14, any Eurodollar Borrowing in whole or in part in amounts (i)
aggregating $10,000,000 or any larger multiple of $5,000,000 or (ii) the
full amount thereof, by paying the principal amount to be prepaid together
with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Advances of the
same Type of the several Lenders included in such Borrowing.
(b) Each notice of prepayment delivered pursuant to clause (a)
above shall specify the date and amount of prepayment and the allocation of
such prepayment among Advances at the time outstanding. Upon receipt of a
notice of prepayment pursuant to this Section, the Agent shall promptly
notify each Lender of the contents thereof and of such Lender's ratable
share (if any) of such prepayment and such notice shall not thereafter be
revocable by the applicable Borrower.
SECTION 2.13 General Provisions as to Payments. (a) Each
obligation of any Borrower under this Agreement and under the Notes shall
be a joint and several obligation of the Borrowers. Each Borrower waives
any right it may have to require the Agent or any Lender to exhaust its
remedies against any Borrower before seeking to enforce the obligations of
any other Borrower hereunder.
(b) The Borrowers shall make each payment of principal of, and
interest on, the Advances and of fees hereunder, not later than 12:00 P.M.
New York City time on the date when due, in Federal or other funds
immediately available in New York City, to the Agent at its address
referred to in Section 11.2. The Agent will promptly distribute to each
Lender its ratable share of each such payment received by the Agent for the
account of the Lenders. Whenever any payment of principal of, or interest
on, the Base Rate Advances or Money Market Absolute Rate Advances or of
fees shall be due on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of, or interest on, the
Eurodollar Advances or Money Market LIBOR Advances shall be due on a day
which is not a Eurodollar Business Day, the date for payment thereof shall
be extended to the next succeeding Eurodollar Business Day unless such
Eurodollar Business Day falls in another calendar month, in which case the
date for payment thereof shall be the next preceding Eurodollar Business
Day. If the date for any payment of principal is extended under this
Section or any other provision of this Agreement, interest thereon shall be
payable for such extended time.
(c) Unless the Agent shall have received notice from any
Borrower prior to the date on which any payment is due to the Lenders
hereunder that one or more of the Borrowers will not make such payment in
full, the Agent may assume that the Borrowers have made such payment in
full to the Agent on such date and the Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an
amount equal to the amount then due such Lender. If and to the extent that
the Borrowers shall not have so made such payment, each Lender shall repay
to the Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to
the Agent, at the Federal Funds Rate.
SECTION 2.14 Funding Losses. If the Borrowers make any
payment of principal with respect to any Fixed Rate Advance (pursuant to
Article II, III or IX or otherwise) on any day other than the last day of
the Interest Period applicable thereto or the end of an applicable period
fixed pursuant to Section 2.7(c), or if the Borrowers fail to borrow or
prepay any Fixed Rate Advance after notice has been given to any Lender in
accordance with Section 2.4(a) or 2.12(b), the Borrowers shall reimburse
each Lender within 30 days after demand for any resulting loss or expense
incurred by it (or by any participant in the related Advance to the extent
provided in Section 11.7(e)), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment
or failure to borrow, provided that such Lender shall have delivered to
SunAmerica (with a copy to the Agent) a certificate setting forth in
reasonable detail calculations as to the amount of such loss or expense,
which certificate shall be conclusive and binding on the Borrowers in the
absence of manifest error.
SECTION 2.15 Computation of Interest and Fees. Interest
based on the Base Rate hereunder shall be computed on the basis of a year
of 365 days (or 366 days in a leap year) and paid for the actual number of
days elapsed (including the first day but excluding the last day). All
other interest and fees shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed (including the first
day but excluding the last day).
SECTION 2.16 Sharing of Payments, etc. If any Lender
shall obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) on account of the Advances
owing to it (other than pursuant to Section 2.17 or 3.3) in excess of its
ratable share of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Advances owing to them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of
them, provided that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each
Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an
amount equal to such Lender's ratable share (according to the proportion of
(i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other similar
amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrowers agree that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.16 may, to the
fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrowers in the
amount of such participation.
SECTION 2.17 Withholding Tax Exemption. (a) On the
Effective Date (or (i) in the case of an entity that becomes a Lender after
the Effective Date, on the date such entity becomes a Lender and (ii) in
the case of a Lender that designates a substitute or additional Applicable
Lending Office to which forms previously furnished by such Lender do not
apply, on the date of such designation) and thereafter as required by
applicable law each Lender that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to
each of the Borrowers and the Agent 2 duly completed, accurate and signed
copies of United States Internal Revenue Service Form 1001 or any successor
thereto ("Form 1001") or Form 4224 or any successor thereto ("Form 4224")
for each of such Lender's Applicable Lending Offices certifying in each
case that such Applicable Lending Office is entitled to receive payments
under this Agreement and the Notes without deduction or withholding of any
United States federal withholding taxes on income ("U.S. Withholding
Taxes"). Each Lender that so delivers a Form 1001 or Form 4224, as the
case may be, for an Applicable Lending Office further undertakes to deliver
to SunAmerica, on behalf of itself and the other Borrowers, and the Agent 2
additional duly completed, accurate and signed copies of Form 1001 or Form
4224 before the date that the prior form expires or becomes obsolete or
prior to the occurrence of any event (or promptly upon the Lender's
knowledge of such event if the Lender obtains knowledge of such event only
after its occurrence) requiring a change in the most recent form so deliv-
ered by it, and such amendments thereto or extensions or renewals thereof
as may be reasonably requested by SunAmerica or the Agent, in each case
certifying that such Applicable Lending Office is entitled to receive
payments under this Agreement and the Notes without deduction or
withholding of any U.S. Withholding Taxes, unless an event (including
without limitation any change in treaty, law or regulation) has occurred
prior to the date on which any such delivery would otherwise be required
which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it
and such Lender promptly advises SunAmerica, on behalf of itself and the
other Borrowers, and the Agent in writing that it is not capable of
receiving payments without any deduction or withholding of U.S. Withholding
Taxes. If an event occurs after the date on which a Form 1001 or Form 4224
is submitted by a Lender in respect of such Lender's Applicable Lending
Office that renders such Form inapplicable for a complete exemption from
deduction or withholding of any U.S. Withholding Taxes but such Lender's
Applicable Lending Office is entitled to a reduced rate of deduction or
withholding for such taxes, such Lender shall promptly upon the request of
the Borrowers submit 2 duly completed, accurate and signed copies of the
applicable Form certifying that such Applicable Lending Office is entitled
to receive payments under this Agreement and the Notes with such reduced
rate of deduction or withholding. Unless the Borrowers and the Agent have
received with respect to a Lender organized under the laws of a
jurisdiction outside the United States the forms required to be delivered
in this Section 2.17 entitling the Lenders to a complete exemption from
U.S. Withholding Tax, such Borrower shall withhold taxes from such payments
to or for such Lender as required by applicable law. Each Lender hereby
represents and warrants to each Borrower that as of the Effective Date, no
payments to it hereunder are subject to any U.S. Withholding Taxes, and
each Lender who at any time becomes a Lender hereunder represents and
warrants to each Borrower that as of the date it becomes a Lender
hereunder, no payments to it hereunder are subject to any U.S. Withholding
Taxes.
(b) In the event that the Borrowers or the Agent are required
by applicable law to make any withholding or deduction of U.S. Withholding
Taxes with respect to any Advance or fee, the Borrowers shall pay such
deduction or withholding to the applicable taxing authority, shall furnish
to the Agent for the Lender in respect of which such deduction or
withholding is made all receipts, if any, and other documents evidencing
such payment and shall to the extent provided below pay to the Agent or
such Lender such additional amounts with respect to U.S. Withholding Taxes
("Additional Amounts") as may be necessary in order that the net amount
received by the Agent or such Lender after the required withholding or
other payment (including any required withholding or other payment on such
Additional Amounts) shall equal the amount the Agent or such Lender would
have received had no such withholding or other payment been made.
Notwithstanding anything in this Agreement, the Borrowers shall only be
required to pay Additional Amounts for the account of a Lender or bear the
cost of or indemnify a Lender against U.S. Withholding Taxes, if such
amounts arise by reason of (i) changes in income tax provisions of the
Internal Revenue Code from and after the date such Lender becomes a lender
to the Borrowers (in the case where such Lender's Applicable Lending Office
is located in the United States) affecting the scope, definition or
taxation of effectively connected income (as described in Section 864(c) of
the Internal Revenue Code) or (ii) changes in withholding tax treaty rates
between the United States and such Lender's country of residence, from and
after the date such Lender becomes a lender to the Borrowers, provided that
the Borrowers shall not be required to pay any Additional Amounts, or
indemnify against any U.S. Withholding taxes, imposed as a result of a
Lender's failure to comply with subsection (a) above, but following the
correction of such failure shall take such steps as such Lender shall
reasonably request to assist such Lender in recovering any U.S. Withholding
Taxes paid as a result of such failure.
ARTICLE III
CHANGES IN CIRCUMSTANCES
SECTION 3.1 Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period for any
Fixed Rate Advance:
(a) the Agent is advised by the Reference Banks that deposits
in dollars (in the applicable amounts) are not being offered to
the Reference Banks in the relevant market for such Interest
Period; or
(b) in the case of a Committed Advance, the Required Lenders
advise the Agent that the London Interbank Offered Rate as
determined by the Agent will not adequately and fairly reflect the
cost to such Lenders of funding their Eurodollar Advances for
such Interest Period,
the Agent shall forthwith give notice thereof to the Borrowers and the
Lenders, whereupon until the Agent notifies the Borrowers that the
circumstances giving rise to such suspension no longer exist, the
obligations of the Lenders to make Eurodollar Advances shall be suspended.
Unless the Borrowers notify the Agent at least 2 Domestic Business Days
prior to the date of any Fixed Rate Advance for which a Notice of Borrowing
has previously been given that it elects not to borrow on such date, (i) if
such Fixed Rate Advance is a Committed Advance, such Advance shall instead
be made as a Base Rate Advance and (ii) if such Fixed Rate Advance is a
Money Market LIBOR Advance, the Money Market LIBOR Advances comprising such
Advance shall bear interest for each day from and including the first day
to but excluding the last day of the Interest Period applicable thereto at
the Base Rate for such day.
SECTION 3.2 Illegality. If, after the Effective Date,
the adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by
any Governmental Authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender
(or its Eurodollar Lending Office) with any request or directive (whether
or not having the force of law) of any such Governmental Authority, central
bank or comparable agency shall make it unlawful or impossible for any
Lender (or its Eurodollar Lending Office) to make, maintain or fund its
Eurodollar Advances and such Lender shall so notify the Agent, the Agent
shall forthwith give notice thereof to the other Lenders and the Borrowers,
whereupon until such Lender notifies the Borrowers and the Agent that the
circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make Eurodollar Advances shall be suspended.
Before giving any notice to the Agent pursuant to this Section 3.2, such
Lender shall designate a different Eurodollar Lending Office if such
designation will avoid the need for giving such notice and will not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender. If such Lender or any Lender having outstanding any Money Market
LIBOR Advances shall determine that it may not lawfully continue to
maintain and fund any of its outstanding Eurodollar Advances or Money
Market LIBOR Advances, as the case may be, to maturity and shall so specify
in such notice, the Borrowers shall immediately prepay in full the then
outstanding principal amount of each such Eurodollar Advance or Money
Market LIBOR Advance, as the case may be, together with accrued interest
thereon. Concurrently with prepaying each such Eurodollar Advance, each
Borrower may borrow a Base Rate Advance in an equal principal amount from
any such Lender that has outstanding Eurodollar Advances (on which interest
and principal shall be payable contemporaneously with the related
Eurodollar Advances of the other Lenders), and such Lender shall make such
a Base Rate Advance.
SECTION 3.3 Increased Cost and Reduced Return. (a) If
after (x) the Effective Date, in the case of any Committed Advance or any
obligation to make Committed Advances, or (y) the date of the related Money
Market Quote, in the case of any Money Market Advance, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in
the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable
Lending Office) with any request or directive (whether or not having the
force of law) of any such Governmental Authority, central bank or com-
parable agency:
(i) shall subject any Lender (or its Applicable Lending
Office) to any tax, duty or other charge with respect to its Fixed
Rate Advances, its Notes or its obligation to make Fixed Rate
Advances, or shall change the basis of taxation of payments to any
Lender (or its Applicable Lending Office) of the principal of or
interest on its Fixed Rate Advances or any other amounts due under
this Agreement in respect of its Fixed Rate Advances or its
obligation to make Fixed Rate Advances (except for changes in the
rate of tax on the overall net income of such Lender or its
Applicable Lending Office imposed by the jurisdiction of its
incorporation or in which such Lender's principal executive office
or Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by
the Board of Governors of the Federal Reserve System, but
excluding with respect to any Eurodollar Advance or Money Market
LIBOR Advance, any such requirement included in an applicable
Eurodollar Reserve Percentage), special deposit, insurance
assessment or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender (or its
Applicable Lending Office) or shall impose on any Lender (or its
Applicable Lending Office), or the London interbank market, any
other condition affecting its Fixed Rate Advances, its Notes or
its obligation to make Fixed Rate Advances;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making or maintaining any
Fixed Rate Advance, or to reduce the amount of any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or under its Notes with respect thereto, by an amount deemed by
such Lender to be material, then, within 30 days after demand by such
Lender, which demand shall be accompanied by a statement setting forth in
reasonable detail the basis of and calculations with respect to such demand
(with a copy to the Agent), the Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction.
(b) If any Lender shall have determined that, after the
Effective Date, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency has or would have the effect
of reducing the rate of return on capital of such Lender (or any Person
controlling such Lender) as a consequence of such Lender's obligations
hereunder to a level below that which such Lender (or such controlling
Person) could have achieved but for such adoption, change, request or
directive (taking into consideration its internal policies with respect to
capital adequacy) by an amount reasonably deemed by such Lender to be
material, then from time to time, within 30 days after demand by such
Lender, which demand shall be accompanied by a statement setting forth in
reasonable detail the basis of and calculations with respect to such demand
(with a copy to the Agent), the Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender (or such
controlling Person) for such reduction.
(c) Each Lender will promptly notify the Borrowers and the
Agent of any event of which it has knowledge, occurring after the date
hereof, that will entitle such Lender to compensation pursuant to this
Section 3.3 and will designate a different Applicable Lending Office if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. A certificate of any Lender
claiming compensation in accordance with this Section 3.3 and setting forth
the additional amount or amounts to be paid to it hereunder shall, in the
absence of manifest error, be conclusive and binding on the Borrowers.
SECTION 3.4 Base Rate Advances Substituted for Affected
Fixed Rate Advances. If (i) the obligation of any Lender to make
Eurodollar Advances has been suspended pursuant to Section 3.2 or (ii) any
Lender has demanded compensation under Section 3.3(a) and the Borrowers
shall, by at least 5 Eurodollar Business Days' prior notice to such Lender
through the Agent, have elected that the provisions of this Section 3.4
shall apply to such Lender, then, unless and until such Lender notifies
such Borrower that the circumstances giving rise to such suspension or
demand for compensation no longer apply, which such Lender hereby agrees to
give as soon as practicable under the circumstances:
(a) all Advances that would otherwise be made by such Lender
as Eurodollar Advances shall be made instead as Base Rate Advances
(on which interest and principal shall be payable
contemporaneously with the related Fixed Rate Advances of the
other Lenders), and
(b) after each of its Eurodollar Advances has been repaid (or
converted to a Base Rate Advance), all payments of principal that
would otherwise be applied to repay such Fixed Rate Advances shall
be applied to repay its Base Rate Advances instead.
SECTION 3.5 Substitution of Lender. If (i) the
obligation of any Lender to make Eurodollar Advances has been suspended
pursuant to Section 3.2, (ii) any Lender has demanded compensation under
Section 3.3, or (iii) the Borrowers are required to pay any Additional
Amounts under Section 2.17 to any Lender, the Borrowers shall have the
right, with the assistance of the Agent, to seek a mutually satisfactory
substitute bank or banks, which shall be an Eligible Assignee (and which
may be one or more of the Lenders), to purchase the Notes and assume the
Commitment of such Lender.
SECTION 3.6 Discretion of Lenders as to Manner of
Funding. Notwithstanding any provision of this Agreement to the contrary,
each Lender shall be entitled to fund and maintain its funding of all or
any part of its Advances in any manner it sees fit, it being understood,
however, that for the purposes of this Agreement all determinations hereun-
der shall be made as if such Lender had actually funded and maintained each
Eurodollar Advance, Money Market Absolute Rate Advance or Money Market
LIBOR Advance through the purchase of deposits having a maturity
corresponding to the Interest Period for such Eurodollar Advance, Money
Market Absolute Rate Advance or Money Market LIBOR Advance, as the case may
be, and bearing an interest rate equal to the London Interbank Offered Rate
or Money Market Absolute Rate, as the case may be, for such Interest
Period.
SECTION 3.7 Conclusiveness of Statements; Survival of
Provisions. Determinations and statements of the Agent or any Lender made
in accordance with Section 2.14 and Section 3.1 through Section 3.3 shall
be conclusive and binding on the Borrowers absent manifest error. The
provisions of Sections 2.14, 3.2, 3.3 and 3.4 shall survive termination of
this Agreement.
ARTICLE IV
CONDITIONS OF LENDING
The obligation of each of the Lenders to make the Advances
is subject to the satisfaction of the following conditions precedent:
SECTION 4.1 Effectiveness. This Agreement shall become
effective on the date this Agreement has been executed and the Agent has
received the notices provided for in Section 11.6 (the "Effective Date").
In addition, no Lender shall be obligated to make Advances in respect of
the initial Borrowing under this Agreement unless the following conditions
shall have been satisfied (or waived in accordance with Section 11.1):
(a) receipt by the Agent of counterparts hereof signed by each
of the parties hereto (or, in the case of any party as to which an
executed counterpart shall not have been received, receipt by the
Agent in form satisfactory to it of telegraphic, telex or other
written confirmation from such party of execution of a counterpart
hereof by such party);
(b) receipt by the Agent of appropriately completed Notes,
executed by each Borrower and payable to the order of each of the
Lenders, respectively;
(c) receipt by the Agent of an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the
Secretary and General Counsel-Corporate Affairs of SunAmerica,
substantially in the form of Exhibit F and covering such
additional matters relating to the transactions contemplated
hereby as the Agent may reasonably request;
(d) receipt by the Agent of an opinion of Milbank, Tweed,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to the Agent;
(e) receipt by the Agent of a certificate of a Responsible
Officer of each Borrower, to the effect that (i) the
representations and warranties of such Borrower contained in
Article V were true and correct in all material respects on the
Effective Date and on the date of such certificate and (ii) no
Default exists or results from the execution and delivery by such
Borrower of this Agreement or the Notes; and
(f) receipt by the Agent of all documents reasonably requested
by the Agent relating to the existence and good standing of the
Borrowers and their respective Subsidiaries, the corporate author-
ity for and validity of this Agreement and the Notes, and any
other matters relevant hereto, all in form and substance
satisfactory to the Agent and the Agent's counsel;
(g) receipt by the Agent of evidence that the principal of and
interest on the indebtedness outstanding under the Existing Credit
Agreements on the Effective Date and all other amounts owing under
the Existing Credit Agreements shall have been paid in full and
that the Commitments (as such term is defined in each of the
Existing Credit Agreements) shall have been terminated;
and such conditions shall have been satisfied not later than October 27,
1995. The Agent shall promptly notify the Borrowers and the Lenders of the
satisfaction of the foregoing conditions, and such notice shall be
conclusive and binding on all parties hereto.
SECTION 4.2 Conditions Precedent to Advances. The
obligation of each Lender to make any Advance is subject to the
satisfaction of the following additional conditions precedent:
(a) The Agent shall have received a Notice of Borrowing from
such Borrower in accordance with Section 2.2 or 2.3, as the case
may be; and the delivery of such Notice of Borrowing from such
Borrower shall constitute a representation and warranty by each
Borrower, and a certification by the Responsible Officer signing
such Notice of Borrowing, that as of the date of such Advance the
conditions specified in this Section 4.2 have been satisfied;
(b) The representations and warranties of each Borrower
contained in Article V are true and correct in all material
respects on the date of such Advance with the same effect as
though made on and as of such date except to the extent they were
expressly made as of the Effective Date or expressly relate to a
prior date, provided that such representations and warranties
shall not include those set forth in Sections 5.6(b)(iii) and 5.7;
(c) No Default exists or will result from the making of such
Advance; and
(d) Immediately after such Advance, the outstanding aggregate
principal amount of all Advances will not exceed the aggregate
amount of all Commitments.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to
make the Advances hereunder, each of the Borrowers jointly and severally
represents and warrants to the Agent and to each of the Lenders that:
SECTION 5.1 Organization, etc. Each Borrower is a
corporation duly organized, validly existing and in good standing under the
laws of the state of its incorporation and has all requisite corporate
power, authority and legal right to own or lease and to operate its prop-
erties, to carry on its business as now conducted and as proposed to be
conducted and to enter into and carry out the terms of this Agreement and
the Notes; and each such Borrower is duly qualified to transact business
and in good standing as a foreign corporation authorized to do business in
each jurisdiction where the ownership, leasing or operation of property or
the conduct of its business makes such qualification necessary, except
where the failure to so qualify or be in good standing would not have a
Material Adverse Effect.
SECTION 5.2 Authorization. Each Borrower has taken all
necessary action to authorize the borrowings hereunder and the execution,
delivery and performance by it of this Agreement and the Notes.
SECTION 5.3 No Conflict. The execution, delivery and
performance by each Borrower of this Agreement and the Notes, and the use
of proceeds of the borrowings hereunder, does not and will not (a)
contravene or conflict with any provision of any applicable law, statute,
rule or regulation of any relevant Governmental Authority, or any
applicable order, writ, judgment or decree of any court, arbitrator or
relevant Governmental Authority, (b) contravene or conflict with, result in
any breach of, or constitute a default under, any agreement or instrument
binding on it, (c) result in the creation or imposition of or the
obligation to create or impose any Lien (except for Permitted Liens) upon
any of the property or assets of such Borrower, or (d) contravene or
conflict with any provision of the certificate of incorporation or by-laws
of such Borrower.
SECTION 5.4 Governmental Consents. No order, consent,
approval, license, authorization or validation of, or filing, recording or
registration with or exemption by, any relevant Governmental Authority is
required in connection with the Borrowings hereunder or the execution,
delivery or performance by any Borrower hereunder or the validity or
enforceability of this Agreement and the Notes, except that this Agreement
may be filed as an exhibit to a report of any Borrower filed under the Ex-
change Act.
SECTION 5.5 Validity. Each Borrower has duly executed
and delivered this Agreement and the Notes and this Agreement and the Notes
constitute legal, valid and binding obligations of such Borrower.
SECTION 5.6 Financial Statements. (a) Statutory
Financial Statements. (i) The annual Convention Statement of each
Insurance Subsidiary including, without limitation, the provisions made
therein for investments and the valuation thereof, reserves, policy and
contract claims and Statutory Liabilities, as filed with their respective
Departments and delivered to each Lender prior to the execution and
delivery of this Agreement, as of and for the years ended December 31,
1992, 1993 and 1994 (collectively, the "Statutory Financial Statements"),
have been prepared in accordance with SAP applicable thereto applied on a
consistent basis (except as noted therein). Each such Statutory Financial
Statement was in compliance with applicable law when filed. The Statutory
Financial Statements are complete and correct and fairly present the
financial position, results of operations and changes in equity of the
Insurance Subsidiary presented therein as of and for the respective dates
and periods indicated therein in conformity with SAP.
(ii) As of June 30, 1995, the Risk-Based Capital Ratio of
Anchor and SunAmerica Life were, respectively, 381% and 200%, and as the
Effective Date, there has been no material reduction in the Risk-Based
Capital Ratio of Anchor or SunAmerica Life.
(b) GAAP Financial Statements. (i) The Borrowers have
delivered to the Agent complete and correct copies of (A) the annual
reports to stockholders of SunAmerica for the fiscal years ended September
30, 1992, 1993 and 1994 (the "Annual Reports"), (B) annual reports on Form
10-K for such fiscal years and all quarterly reports on Form 10-Q of
SunAmerica for periods ending after September 30, 1994, in each case as
filed with the Securities and Exchange Commission (the "SEC Reports") and
(C) consolidating balance sheets and income statements of SunAmerica and
SAFI (but not their respective Subsidiaries) as of and for the year ended
September 30, 1994. The Annual Reports and the SEC Reports correctly
describe, as of their respective dates, the business then conducted and
proposed to be conducted by SunAmerica and its Subsidiaries. There are
included in the SEC Reports consolidated financial statements at and for
the periods specified therein. The Borrowers have also delivered to the
Agent complete and correct copies of all current reports on Form 8-K, proxy
statements, registration statements and prospectuses, if any, filed by any
of the Borrowers or any of their respective Subsidiaries with the
Securities and Exchange Commission since September 30, 1991. All financial
statements delivered to the Agent in the foregoing materials (except as
otherwise specified therein) have been prepared in accordance with GAAP ap-
plied on a consistent basis throughout the periods specified with respect
to each consolidated entity, and present fairly the financial position of
the corporation or corporations to which they relate as of the respective
dates specified and the results of its or their operations and changes in
financial position for the respective periods specified.
(ii) The projected financial statements of SunAmerica and its
Subsidiaries, including the cash flow projections of the Borrowers, which
have been provided to the Banks pursuant to Section 6.01(g) of the Existing
$90,000,000 Credit Agreement are based on good faith estimates and
assumptions made by the management of SunAmerica, it being recognized,
however, that projections are subject to significant uncertainties and
contingencies, many of which are beyond the Borrowers' control, and that
the actual results during the period or periods covered by such projections
may differ from the projected results and that the differences may be
material. Notwithstanding the foregoing, as of the Effective Date,
management of SunAmerica believes that such projections were, taken as a
whole, reasonable and attainable.
(iii) There has been no Material Adverse Change since September
30, 1994.
SECTION 5.7 Litigation. There is no action, suit or
proceeding pending against, or to the knowledge of such Borrower threatened
against or affecting, any Borrower or any of its Subsidiaries before any
court or arbitrator or any governmental body or agency in which there is a
reasonable likelihood of an adverse decision which any Borrower reasonably
believes would have a Material Adverse Effect or which questions the
validity of this Agreement or the Notes.
SECTION 5.8 Liens. As of the Effective Date, none of the
property or assets of any Borrower or any Material Subsidiary is subject to
any Lien, except for Permitted Liens.
SECTION 5.9 Subsidiaries. Each Material Subsidiary is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all corporate power
and authority to own or lease and to operate its properties and to carry on
its business as now conducted and as proposed to be conducted.
SECTION 5.10 Compliance with ERISA. Neither any Borrower
nor any member of the ERISA Group, as of the Effective Date, maintains,
sponsors or has an obligation to contribute to any Plan. Neither any
Borrower nor any member of the ERISA Group has incurred any liability
pursuant to Title IV of ERISA which remains unsatisfied.
SECTION 5.11 Investment Company Act. None of the
Borrowers is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of
1940, as amended.
SECTION 5.12 Public Utility Holding Company Act. None of
the Borrowers is subject to regulation under the Public Utility Holding
Company Act of 1935, as amended.
SECTION 5.13 Margin Regulation. No part of the proceeds
of any Advance will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any
margin stock (within the meaning of Regulation G or Regulation U of the
Board of Governors of the Federal Reserve System), other than in the
ordinary course of investment activities where such uses would not cause
the transactions hereunder to violate such Regulations. Neither the making
of any Advance nor the use of proceeds thereof will violate or be
inconsistent with the provisions of Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System.
SECTION 5.14 Taxes. As of the Effective Date,
(a) Each Borrower and each of its Subsidiaries have
filed all tax returns required by law to have been filed by them
and have paid or provided adequate reserves for all taxes thereby
shown to be owing, except any such taxes that are being diligently
contested in good faith by appropriate proceedings and for which
adequate reserves have been established and are being maintained
in accordance with GAAP. The consolidated liability stated for
taxes for such Borrower and its Subsidiaries as of September 30,
1994 in the financial statements described in Section 5.6 is
sufficient in all material respects for all taxes as of such date.
(b) All life insurance reserves shown as such on
federal tax returns (other than individual annuity contracts) of
such Borrower qualify as life insurance reserves under section
816(b) of the Code or under former section 801(b) of the Code.
(c) Each Insurance Subsidiary is a life insurance
company as defined in section 816 of the Code and is an includable
life insurance company as described in section 1504(c)(1) of the
Code.
SECTION 5.15 Accuracy of Information. Neither the
representations and warranties contained in this Article V, nor any other
document, certificate or instrument delivered to the Lenders by any
Borrower on or prior to the Effective Date in connection with the
transactions contemplated by this Agreement contains any untrue statement
of a material fact or omits to state a material fact necessary in order to
make the statements contained in this Article V, and in such other docu-
ments, certificates or instruments not misleading, and all projections
contained in any such document were based on information which when
delivered was to the best knowledge of each Borrower true and correct, and,
to the best knowledge of such Borrower, all calculations contained in such
projections were accurate, and such projections presented such Borrower's
then-current estimate of its future business, operations and affairs.
SECTION 5.16 Proceeds. The proceeds of the Advances will
be used (a) to provide short-term liquidity to the Borrowers for general
corporate purposes and (b) to support the Borrowers' obligations under the
commercial paper programs of SunAmerica and its Subsidiaries, and will not
under any circumstances be used to make long-term loans to or equity
investments in or equity contributions to any Subsidiary of the Borrowers.
SECTION 5.17 Governmental Authorizations. As of the
Effective Date, each Borrower and its Subsidiaries have all licenses,
franchises, permits and other governmental authorizations necessary for all
businesses presently carried on by them (including ownership and leasing of
the real and personal property owned and leased by them), except where the
failure to do so would not individually or in the aggregate have a Material
Adverse Effect.
SECTION 5.18 Insurance Licenses. No material license
(including, without limitation, any license or certificate of authority
from any applicable Department), permit or authorization to engage in the
business of insurance or reinsurance of any Insurance Subsidiary, other
than licenses, permits or authorizations to perform services as an agent or
broker (individually, a "License" and collectively, the "Licenses") is the
subject of a proceeding for suspension or revocation, except where such
suspension or revocation would not individually or in the aggregate have a
Material Adverse Effect.
SECTION 5.19 Compliance with Laws. As of the Effective
Date, neither any Borrower nor any of its Subsidiaries is in violation of
any law, ordinance, rule, regulation, order, policy, guideline or other
requirement of any Governmental Authority, and, to the best of each Borrow-
er's knowledge, no such violation has been alleged, which violation would
individually or in the aggregate have a Material Adverse Effect.
SECTION 5.20 No Default. As of the Effective Date, none
of the Borrowers or their respective Subsidiaries is in default under any
agreement or instrument to which it is a party or by which any of its
properties or assets is bound or affected, which default would have a
Material Adverse Effect.
ARTICLE VI
AFFIRMATIVE COVENANTS
On and after the Effective Date and for so long thereafter
as any Liabilities for the payment of principal or interest on the Notes
remain unpaid or outstanding or the Commitments remain in effect, the
Borrowers will:
SECTION 6.1 Reports, Certificates and Other Information.
Unless otherwise provided herein, furnish or cause to be furnished to each
Lender:
(a) Audit Report. As soon as available, but in any
event within 90 days after the end of each fiscal year of
SunAmerica: (i) copies of the audited consolidated balance sheet
of SunAmerica and its Subsidiaries as of the end of such fiscal
year and the related consolidated statements of earnings and cash
flows of SunAmerica and its Subsidiaries for such fiscal year, in
each case setting forth in comparative form the consolidated
figures for the previous fiscal year, prepared in reasonable
detail and in accordance with GAAP applied consistently throughout
the periods reflected therein (except as set forth therein); (ii)
a report of Price Waterhouse (or other independent certified
public accountants of nationally recognized standing selected by
SunAmerica), which report shall state that such consolidated fi-
nancial statements present fairly the financial position of
SunAmerica and its consolidated Subsidiaries as at the date
indicated and the consolidated results of their operations and
cash flows in conformity with GAAP applied on a basis consistent
with prior years (except as otherwise specified in report) and
that the audit by such accountants in connection with such
consolidated financial statements has been made in accordance with
generally accepted auditing standards; and (iii) a certificate
from such accountants to the effect that, in making the
examination necessary for the signing of the annual audit report
of SunAmerica by such accountants referred to in clause (ii)
above, they have reviewed this Agreement and have not (unless
otherwise stated) become aware of any Default or Event of Default
under this Agreement.
(b) Quarterly Reports of SunAmerica. Promptly upon
becoming available, but in any event within 60 days after the end
of the first 3 quarters of each fiscal year of SunAmerica, copies
of the unaudited consolidated balance sheet of SunAmerica and its
Subsidiaries as of the end of such fiscal quarter and the related
unaudited statements of earnings and cash flows of SunAmerica and
its Subsidiaries for such fiscal quarter, prepared in reasonable
detail and in accordance with GAAP applied consistently throughout
the periods reflected therein (except as set forth therein) and
certified by the chief accounting officer or chief financial
officer or treasurer or controller of SunAmerica, as presenting
fairly the financial condition and results of operations of
SunAmerica and its Subsidiaries (subject to normal year-end
adjustments).
(c) Consolidating Quarterly Reports of the Borrowers.
Promptly upon becoming available, but in any event within 60 days
after the end of each quarter of each fiscal year of SunAmerica,
copies of the unaudited consolidating balance sheet of the
Borrowers as of the end of such fiscal quarter and the related
unaudited consolidating income statements for such fiscal quarter,
substantially in the form of Exhibit H attached hereto, setting
forth subtotals for each of the Borrowers separately and for the
Borrowers (but not their respective Subsidiaries) as a group and
showing all eliminations and adjustments made in arriving at such
subtotals, all in reasonable detail in accordance with GAAP
applied consistently throughout the periods reflected therein
(except as set forth therein) and certified by the chief ac-
counting officer or chief financial officer or treasurer or
controller of SunAmerica as presenting fairly, in relation to the
consolidated financial statements of SunAmerica and its
Subsidiaries referred to in paragraphs (a) and (b) above, the
financial condition and results of operations of the Borrowers
separately and as a group in accordance with GAAP (subject to
normal year-end adjustments and otherwise as noted therein).
(d) Investments. Contemporaneously with the delivery
of the financial statements provided for in paragraph (c) above, a
detailed list, certified by the chief financial officer or chief
investment officer or chief accounting officer or treasurer or
controller of SunAmerica, of all Investments included in Total
Invested Assets, including (i) the market valuation thereof as
determined in the preparation of the consolidated balance sheets
of SunAmerica delivered under this Section 6.1 and (ii) the credit
rating of each such Investment, as rated by either Standard &
Poor's, ▇▇▇▇▇'▇ or the NAIC, if any.
(e) Compliance Certificate. Contemporaneously with
the delivery of the financial statements provided for in paragraph
(c) above, a duly completed certificate, signed by the chief
accounting officer or chief financial officer or treasurer or
controller of SunAmerica setting forth in reasonable detail the
data and computations necessary to demonstrate compliance with
each of the applicable financial ratios and restrictions contained
in Article VIII, and to the effect that as of such date no Default
or Event of Default has occurred and is continuing, or if any
Default or Event of Default has occurred and is continuing, the
actions taken or proposed to be taken to remedy such Default or
Event of Default.
(f) SAP Financial Statements. With respect to each
Insurance Subsidiary:
(i) (A) Promptly upon becoming available, but
in any event within 75 days after the end of each calendar
year, a copy of the annual Convention Statements of such
Insurance Subsidiary for such calendar year, and (B)
promptly upon becoming available, but in any event within
60 days after the end of each of the first three calendar
quarters, a copy of the quarterly Convention Statements of
such Insurance Subsidiary for such quarter, in each case
prepared in accordance with SAP and accompanied by the
certification of the chief financial officer or chief
executive officer of such Insurance Subsidiary or con-
troller or treasurer that such annual or quarterly
Convention Statement presents fairly, in accordance with
SAP, the financial position and results of operations of
such Insurance Subsidiary as at and for the period ending
on the date of such Convention Statement;
(ii) Within 90 days after the end of each
calendar year, a copy of each "Statement of Actuarial
Opinion" that is provided to the applicable Department (or
equivalent information should the Department no longer
require such a statement) as to the adequacy of aggregate
reserves for life policies and contracts of such Insurance
Subsidiary. Such opinion shall be in the format pre-
scribed by the Insurance Code of the state of domicile of
such Insurance Subsidiary.
(g) Cash Flow Statements. Contemporaneously with the
delivery of the financial statements for the fourth fiscal quarter
provided for in paragraph (c) above, a copy of the unconsolidated
statement of cash flows for the fiscal year then ended and a
projected unconsolidated statement of cash flows for each of the
immediately succeeding fiscal years through at least September 30,
1998 for the Borrowers on a combined basis, together with a
certificate of a Responsible Officer to the effect that such
projections have been prepared on the basis of good faith
estimates and assumptions and sound financial planning practices
of management of the Borrowers and that such Responsible Officer
has no reason to believe that they are incorrect or misleading in
any material respect.
(h) Reports to SEC and to Shareholders. Promptly upon
the filing or making thereof, copies of all registration
statements and regular periodic reports (including reports on Form
8-K), if any, which any Borrower shall have filed with or to any
securities exchange or the Securities and Exchange Commission, and
promptly after the mailing thereof, copies of all financial
reports and proxy statements from any of them to shareholders
generally.
(i) Notice of Default, Litigation, Etc. Promptly upon
a Responsible Officer of any Borrower learning of the occurrence
of any of the following, written notice thereof, describing the
same and the steps being taken by such Borrower with respect
thereto:
(i) the occurrence of any Default or Event of
Default and the actions taken or proposed to be taken to
remedy such Default or Event of Default;
(ii) any material default or event of default
on any material contractual obligation of such Borrower or
any Material Subsidiary;
(iii) any action, suit or proceeding affecting
such Borrower or any Material Subsidiary before any court
or arbitrator or any governmental body or agency in which
there is a reasonable possibility of an adverse decision
which any Borrower reasonably believes would have a
Material Adverse Effect; and
(iv) the occurrence of any Material Adverse
Change.
(j) ERISA. If and when any member of the ERISA Group
(i) gives, or is required in the future to give, notice to the
PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan that might constitute grounds for
a termination of such Plan under Title IV of ERISA, or knows that
the plan administrator of any Plan has given or is required to
give notice in the future of any such reportable event, a copy of
the notice of such reportable event given or required to be given
to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice (whether
or not in writing) from the PBGC that it is considering whether to
terminate, impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or appoint a trustee to administer,
any Plan, a copy (or a written description) of such notice; (iv)
applies for a waiver of the minimum funding standards under
section 412 of the Code, a copy of such application; (v) gives
notice to participants of intent to terminate any Plan under Sec-
tion 4041(c) of ERISA, a copy of such notice and other information
to be filed with the PBGC; or (vi) fails to make payments or
contributions in an aggregate amount of more than $10,000,000 to
any Plan or Multiemployer Plan or determines to make any amendment
to any Plan that has resulted or could result in the imposition of
a Lien or the posting of a bond or other security in an aggregate
amount of more than $10,000,000, a certificate of the chief
financial officer or the chief accounting officer of SunAmerica
setting forth details as to such occurrence and action, if any,
that SunAmerica or the applicable member of the ERISA Group is
required or proposes to take.
(k) Change in Credit Rating. Promptly upon learning
thereof, written notice of any change in (i) the credit rating of
SunAmerica's senior unsecured long term debt by Standard & Poor's
or ▇▇▇▇▇'▇ or (ii) the rating of any Insurance Subsidiary by A.M.
Best Company Inc.
(l) Insurance Licenses. Prompt notice of the actual
suspension, termination or revocation of any material License, or
any material restriction on license authority, of any Insurance
Subsidiary by any relevant Governmental Authority or of receipt of
notice from any relevant Governmental Authority notifying any
Insurance Subsidiary of a hearing relating to such a suspension,
termination, revocation, restriction or limitation, including any
request by a relevant Governmental Authority that commits any
Insurance Subsidiary to take, or refrain from taking, any action,
which materially and adversely affects the authority of any
Insurance Subsidiary to conduct its insurance business.
(m) Other Information. From time to time such other
information and certifications concerning the condition and
operations, financial or otherwise, of such Borrower and its
Subsidiaries as the Agent or any Lender through the Agent may
reasonably request.
SECTION 6.2 Corporate Existence; Foreign Qualification.
Do, and cause each of its Material Subsidiaries to do, or cause to be done,
all things necessary to preserve and keep in full force and effect its
existence and its material rights, franchises, licenses and patents,
provided that nothing in this Section 6.2 shall (a) prohibit actions
permitted under Section 7.2 or (b) prevent the withdrawal by such Borrower
or any such Subsidiary of its qualification as a foreign corporation or its
termination of any license in any jurisdiction where such withdrawal or
termination or failure to keep in full force and effect would not
individually or in the aggregate have a Material Adverse Effect.
SECTION 6.3 Compliance with Laws. Comply, and cause each
of its Subsidiaries to comply, with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, any Governmental
Authority in respect of the conduct of its business and the ownership of
its properties, except such noncompliance as would not individually or in
the aggregate have a Material Adverse Effect.
SECTION 6.4 Books, Records and Inspections. (a) Maintain,
and cause each of its Material Subsidiaries to maintain, books and records
which are complete and correct in all material respects; (b) permit access
at reasonable times by the Agent to its books and records; (c) permit the
Agent and each Lender to inspect at all reasonable times its properties and
operations; and (d) upon reasonable notice to such Borrower, permit the
Agent and each Lender to discuss its business, operations and financial
condition with its officers.
SECTION 6.5 Insurance. Maintain, and cause each of its
Material Subsidiaries to maintain, with responsible and reputable insurance
companies, insurance with respect to its properties and business against
such casualties and contingencies and of such types and in such amounts as
is customary in the case of similar businesses (it being understood that
insurance and self-insurance shall be permitted to the extent consistent
with prudent business practice among such similar businesses).
SECTION 6.6 Maintenance of Properties. Maintain and
preserve, and cause each of its Material Subsidiaries to maintain and
preserve, all of its properties that are used or useful in the conduct of
its business in the ordinary course in good working order and condition,
ordinary wear and tear excepted, except where the failure to do so would
not have a Material Adverse Effect.
SECTION 6.7 Taxes. Pay, and cause each of its Material
Subsidiaries to pay, when due all taxes, except such as are being contested
in good faith and by appropriate proceedings and with respect to which
appropriate reserves have been established, and are being maintained, in
accordance with GAAP.
SECTION 6.8 Maintenance of Ratings. At all times use
their reasonable efforts to cause the senior unsecured long term debt of
SunAmerica to be rated by Standard & Poor's and by ▇▇▇▇▇'▇, unless
management determines it is in the best interests of SunAmerica not to do
so.
SECTION 6.9 Compliance with ERISA. (a) Fulfill, and cause
each member of the ERISA Group to fulfill, its obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan,
(b) comply, and cause each member of the ERISA Group to comply, with all
applicable provisions of ERISA and the Code with respect to each Plan,
except where such failure or noncompliance individually or in the aggregate
would not have a Material Adverse Effect and (c) not, and not permit any
member of the ERISA Group to, (i) seek a waiver of the minimum funding
standards under ERISA, (ii) terminate or withdraw from any Plan or (iii)
take any other action with respect to any Plan which would reasonably be
expected to entitle the PBGC to terminate, impose liability in respect of,
or cause a trustee to be appointed to administer, any Plan, unless the
actions or events described in the foregoing clauses (i), (ii) or (iii)
individually or in the aggregate would not have a Material Adverse Effect.
ARTICLE VII
NEGATIVE COVENANTS
On and after the Effective Date and for so long thereafter
as any Liabilities for the payment of principal or interest on the Notes
remain unpaid or outstanding or the Commitments are in effect, the
Borrowers will (unless otherwise consented to by the Required Lenders in
accordance with Section 11.1):
SECTION 7.1 Liens. Not, and not permit any Material
Subsidiary to, create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except for the following (collectively
called "Permitted Liens"):
(a) Liens for current taxes not delinquent or for
taxes being contested in good faith and by appropriate proceedings
and with respect to which adequate reserves are being maintained
in accordance with GAAP;
(b) leases or subleases granted to others, easements,
rights-of-way, restrictions and similar Liens on real property in
each case that do not materially impair the use of such property
by such Borrower or any of its Subsidiaries;
(c) Liens (other than any Lien imposed by ERISA)
incurred in the ordinary course of business in connection with
workers' compensation, unemployment insurance or other forms of
governmental insurance or benefits or to secure performance of
tenders, statutory obligations, leases and contracts (other than
for borrowed money) entered into in the ordinary course of
business or to secure obligations on surety or appeal bonds;
(d) Liens of mechanics, carriers, materialmen,
warehousemen, repairmen and other like Liens arising in the
ordinary course of business in respect of obligations which are
not delinquent or which are being contested in good faith and by
appropriate proceedings and with respect to which adequate re-
serves are being maintained in accordance with GAAP;
(e) any Lien existing on any asset prior to the
acquisition thereof by such Borrower or Material Subsidiary and
not created in contemplation of such acquisition;
(f) any Lien existing on any asset of any corporation
at the time such corporation becomes a Material Subsidiary or is
merged or consolidated with or into a Borrower or its Subsidiary
and, in each case, not created in contemplation of such event;
(g) any Lien on any asset securing Debt incurred or
assumed for the purpose of financing all or any part of the cost
of acquiring such asset, provided that (i) such Lien attaches to
such asset concurrently with or within 90 days after the ac-
quisition thereof, and (ii) such Lien is confined solely to the
asset so acquired and, if required by the terms of the instrument
originally creating such Lien, other property which is an
improvement to or is acquired for specific use in connection with
such acquired asset;
(h) Liens (including Liens existing on the date
hereof) on securities or other property which are assets of any
Borrower or any Material Subsidiary in respect of such Borrower's
or Subsidiary's obligations under repurchase agreements, reverse
repurchase agreements and securities lending arrangements with
respect to such securities or other property and in respect of any
other obligations contemplated by subsection (vii) of the
definition of Debt in Section 1.1;
(i) any Liens (i) that any applicable regulatory
authority may require any Borrower or Material Subsidiary to place
on its assets in connection with such authority's regulation of an
Insurance Subsidiary, provided such requirement is not at the
request of any Borrower or its Subsidiaries, or (ii) that may be
required to comply with applicable insurance laws or regulations;
(j) Liens on Permitted Collateralization Assets;
(k) any Liens arising in connection with (i) guar-
anteed investment contracts, funding agreements and other similar
contracts and (ii) leasing arrangements, in each case entered into
in the ordinary conduct of the business of any Borrower or
Material Subsidiary;
(l) Liens on assets securing Debt or other liabilities
in respect of which recourse of the holder is limited solely to
such assets directly securing such Debt or other liabilities;
(m) Liens on assets having an aggregate book value not
exceeding $40,000,000 at any one time granted under interest rate
and/or currency swap arrangements, interest rate protection
arrangements and futures contracts (and similar arrangements),
regardless of notional amount;
(n) Liens on assets of any Material Subsidiary that
secure Debt or other liabilities of such Material Subsidiary and
are not otherwise permitted by the foregoing clauses of this
Section 7.1 so long as the aggregate principal amount of all such
Debt and the aggregate amount of all such other liabilities
subject to this clause (n) at any time outstanding does not exceed
$75,000,000; and
(o) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt or other liabilities
secured by any Lien permitted by any of the foregoing clauses,
provided that after giving effect to such refinancing, extension,
renewal or refunding, such Lien would be permitted under the
foregoing clauses.
SECTION 7.2 Consolidation, Merger, Sales of Stock and
Assets, etc. Not, and not permit any Material Subsidiary which for or as
of the end of SunAmerica's most recent fiscal year had pretax income in
excess of 20% of the consolidated pretax income of SunAmerica reflected in
its consolidated financial statements or assets in excess of 20% of the
consolidated assets of SunAmerica reflected in its consolidated financial
statements to, consolidate with or merge into or with, any other Person, or
sell, lease or otherwise transfer any shares of the capital stock of SAFI
or any such Material Subsidiary or all or substantially all of the assets
of any Borrower or any Material Subsidiary to any other Person, provided
that this Section 7.2 shall not apply:
(a) to any merger of SunAmerica with another Person if
(x) SunAmerica is the corporation surviving to such merger and
(y) immediately after giving effect to such merger, no Default or
Event of Default shall have occurred and be continuing;
(b) to any merger or consolidation of SAFI or any such
Material Subsidiary with or into, or sale of all or substantially
all of its assets to, any Borrower or any wholly-owned Material
Subsidiary, provided that in the case of SAFI, such Borrower is
the corporation surviving such transaction, or such merger,
consolidation or sale of assets is with, into or to another
Borrower;
(c) to any sale, transfer or other disposition that is
required to comply with the order of a court or regulatory
authority of competent jurisdiction, other than an order issued at
the request of any Borrower or such Material Subsidiary, or that
is required to comply with applicable insurance law or regulation;
(d) to any shares of capital stock issued, sold,
assigned, transferred or otherwise disposed of which constitute
directors' qualifying shares;
(e) if after giving effect to the sale, transfer or
other disposition of capital stock of SAFI or any such Material
Subsidiary, SunAmerica would own, directly or indirectly, 100% of
the issued and outstanding Voting Stock of SAFI and the Borrowers
and their Material Subsidiaries would own directly or indirectly
at least 80% of the issued and outstanding Voting Stock of such
Material Subsidiary, and such sale, assignment, transfer or other
disposition is made for a consideration consisting of cash or
other property which is at least equal to the fair value of the
capital stock disposed of; or
(f) to any transaction which involves the disposition
of investment assets in connection with the management of such
Borrower's or Material Subsidiary's investment portfolio.
SECTION 7.3 Business Activities. Not engage in any type
of business, directly or indirectly, except the general types of businesses
presently engaged in by the Borrowers and their respective Subsidiaries.
ARTICLE VIII
FINANCIAL COVENANTS
On and after the Effective Date and for so long thereafter
as any Liabilities for the payment of principal or interest on the Notes
remain unpaid or outstanding or the Commitments remain in effect:
SECTION 8.1 Consolidated Tangible Net Worth. SunAmerica
shall at all times maintain a Consolidated Tangible Net Worth of no less
than the greater of (a) $600,000,000 and (b) 85% of the highest
Consolidated Tangible Net Worth of SunAmerica as at the end of any fiscal
year ending September 30, 1991 or thereafter.
SECTION 8.2 Consolidated Debt to Total Capital.
SunAmerica shall at all times maintain Consolidated Debt as a percentage of
Consolidated Total Capital at no greater than 40%.
SECTION 8.3 Risk-Based Capital Ratio. The Borrowers
shall at all times cause each of Anchor, SunAmerica Life and any other
Insurance Subsidiary that is a Material Subsidiary to maintain a Risk-Based
Capital Ratio of no less than 125%.
SECTION 8.4 Total Invested Assets. (a) At all times when
the senior unsecured debt of SunAmerica is rated at least "A-" by Standard
& Poor's and "Baa3" by ▇▇▇▇▇'▇, the Borrowers, considered as a consolidated
entity, shall own directly Investment Grade Securities which are readily
saleable and which have a market value of not less than the greater of (x)
$50,000,000 and (y) 10% of Total Invested Assets, and (b) at all times when
the senior unsecured debt of SunAmerica is rated lower than "A-" by
Standard & Poor's or "Baa3" by ▇▇▇▇▇'▇, the Borrowers shall own directly
Investment Grade Securities which are readily saleable and which have a
market value of not less than the greater of (A) $100,000,000 and (B) 20%
of Total Invested Assets.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1 Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) Any Borrower shall (i) fail to pay any principal
of any Advance when the same becomes due and payable hereunder or
(ii) fail to pay any interest on any Advance or any fee pursuant
hereto within 5 Domestic Business Days after the same becomes due
and payable hereunder or (iii) fail to pay any other amount
pursuant hereto within 15 Domestic Business Days after the same
becomes due and payable hereunder; or
(b) Any representation or warranty made by any
Borrower herein or pursuant hereto shall prove to have been
incorrect in any material respect when made, or any certificate or
financial statement, or any report or notice prepared by any
Borrower, in each case furnished by any Borrower to the Agent or
any Lender pursuant hereto, shall prove to have been false or
misleading in any material respect on the date as of which the
facts therein set forth are stated or certified; or
(c) Any Borrower fails to perform or observe in any
material respect, to the extent applicable to it, (i) any term,
covenant or agreement contained in Section 6.1(i), Article VII or
Article VIII if such failure shall remain unremedied for 5
Domestic Business Days after a Responsible Officer of any Borrower
first learns of such failure, or (ii) any other term, covenant or
agreement contained in this Agreement on its part to be performed
or observed if such failure shall remain unremedied for 30 days
after written notice thereof shall have been given to such
Borrower by the Agent; or
(d) Any Borrower or any Material Subsidiary shall fail
to pay any principal of or premium or interest on any Debt that is
outstanding in a principal amount of at least $50,000,000 (but
excluding Debt outstanding hereunder) of such Borrower or such
Material Subsidiary, within the applicable grace period for such
payment after the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise); or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such Debt
which has not been effectively waived under such agreement or
instrument if the effect of such event or condition (after the
expiration of any grace or cure periods provided for therein) is
to accelerate, or to permit the acceleration of, the maturity of
such Debt; or any such Debt shall be accelerated or otherwise
declared to be due and payable, or required to be prepaid prior to
its maturity (other than by a regularly scheduled required
prepayment); or
(e) Any Borrower or any Material Subsidiary shall
(i) be generally not paying its debts as they become due, (ii)
file, or consent in writing to the filing against it of, a
petition for relief or reorganization or arrangement or any other
petition in bankruptcy, for liquidation or to take advantage of
any bankruptcy or insolvency law of any jurisdiction, (iii) make
an assignment for the benefit of its creditors, (iv) consent to
the appointment of a custodian, receiver, trustee or other officer
with similar powers with respect to it or with respect to any
substantial part of its property, (v) be adjudicated insolvent or
be liquidated under any bankruptcy or insolvency law or (vi) take
any corporate action for the purpose of accomplishing any of the
foregoing; or
(f) A court or governmental authority of competent
jurisdiction shall enter an order appointing, without consent by
any Borrower or Material Subsidiary, as the case may be, a
custodian, receiver, trustee, liquidator, rehabilitator, or
conservator or other officer with similar powers with respect to
such Borrower or with respect to any substantial part of its
property, or if an order for relief shall be entered in any case
or proceeding for liquidation, rehabilitation or reorganization or
otherwise to take advantage of any bankruptcy, insolvency or
similar law of any jurisdiction, or ordering the dissolution,
winding-up, liquidation, receivership, rehabilitation, or
conservatorship of any Borrower or any Material Subsidiary, as the
case may be, or if any petition for any such relief shall be filed
against any Borrower or Material Subsidiary, as the case may be,
and such petition shall not be dismissed within 90 days; or
(g) A judgment or order for the payment of $25,000,000
or more entered against any Borrower or any Material Subsidiary
shall not have been vacated, satisfied, discharged or stayed
pending appeal within 60 days from the entry thereof, or, in the
event of such a stay, such judgment shall not be discharged within
60 days after such stay expires; or
(h) The occurrence of a Change in Control;
then, and in any such event, the Agent (i) shall at the request, or may
with the consent, of the Required Lenders, by notice to each Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to
each Borrower, declare the Notes, the Advances, all interest thereon and
all other amounts payable under this Agreement to be forthwith due and
payable, whereupon the Notes, the Advances, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived by each Borrower, provided that upon the occurrence of an
Event of Default of the types described in paragraphs (e) and (f), (A) the
obligation of each Lender to make Advances shall automatically be termi-
nated and (B) the Notes, the Advances, all such interest and all such
amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by each Borrower.
ARTICLE X
AGENT
SECTION 10.1 Authorization and Action. Each Lender
hereby appoints and authorizes the Agent to take such action on its behalf
and to exercise such powers under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Required Lenders (or of all Lenders in the case of
actions requiring the consent of all Lenders under Section 11.1), and such
instructions shall be binding upon all Lenders, provided that the Agent
shall not be required to take any action which exposes the Agent to
personal liability or which is contrary to this Agreement or applicable
law. The Agent agrees to give to each Lender prompt notice of each notice
given to it by the Borrowers pursuant to the terms of this Agreement.
SECTION 10.2 Agent's Reliance, etc. Neither the Agent
nor any of its directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in
connection with this Agreement, except for its or their own gross
negligence or wilful misconduct. Without limitation of the generality of
the foregoing, the Agent (i) may treat the payee of any Note as the holder
thereof until the Agent receives and accepts an Assignment and Acceptance
entered into by the Lender which is the payee of such Note, as assignor,
and an Eligible Assignee, as assignee, as provided in Section 11.7, (ii)
may consult with legal counsel (including counsel for any Borrower),
independent public accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts,
(iii) may perform any of its duties under this Agreement by or through
agents or attorneys-in-fact selected by it with reasonable care and shall
not be liable for any action taken or omitted to be taken by any such agent
or attorney-in-fact, (iv) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties
or representations made in or in connection with this Agreement, (v) shall
not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement
on the part of or to inspect the property (including the books and records)
of any Borrower, (vi) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished
pursuant hereto, and (vii) shall incur no liability under or in respect of
this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, cable or telex) believed
by it to be genuine and signed or sent by the proper party or parties.
SECTION 10.3 Agent and Affiliates. With respect to its
Commitment, the Advances made by it and the Notes issued to it, the Agent
shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not an Agent; and the
term "Lender" or "Lenders" shall, unless otherwise expressly indicated,
include the Agent in its individual capacity. The Agent and its Affiliates
may accept deposits from, lend money to, act as trustee under indentures
of, and generally engage in any kind of business with, any Borrower, any of
their respective Subsidiaries and any Person who may do business with or
own securities of any Borrower or any such Subsidiaries, all as if the
Agent were not an Agent hereunder and without any duty to account therefor
to the Lenders.
SECTION 10.4 Lender Credit Decision. Each Lender
expressly acknowledges that neither the Agent, nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereafter
taken, including any review of the affairs of any Borrower or any of their
respective Subsidiaries, shall be deemed to constitute any representation
or warranty by any of them to any Lender. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender
and based on the financial statements referred to in Section 5.6 and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement. Except for
notices, reports and other documents expressly required to be furnished to
the Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, condition (financial or otherwise), operations,
property, prospects or creditworthiness of the Borrowers or any of their
respective Subsidiaries which may come into the possession of the Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
SECTION 10.5 Indemnification. The Lenders agree to
indemnify the Agent (to the extent not reimbursed by any Borrower), ratably
according to the respective amounts of their respective Commitments, from
and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever which may at any time be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of
this Agreement or any documents contemplated by or referred to herein or
the transactions contemplated hereby or any action taken or omitted by the
Agent under or in connection with any of the foregoing, provided that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or wilful miscon-
duct. Without limiting the foregoing, each Lender agrees to reimburse the
Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including counsel fees) incurred by the Agent in connection with
the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings
or otherwise) of, or legal advice in respect of rights or responsibilities
under, this Agreement, to the extent that the Agent is not reimbursed for
such expenses by any Borrower. The agreements in this Section 10.5 shall
survive the payment of the Notes and Advances and all other amounts payable
hereunder.
SECTION 10.6 Successor Agent. The Agent may resign at
any time by giving written notice thereof to the Lenders and each Borrower.
Upon any such resignation, the Required Lenders shall have the right to
appoint a successor Agent who is reasonably acceptable to the Borrowers.
If no successor Agent shall have been so appointed by the Required Lenders,
and shall have accepted such appointment, within 30 days after the retiring
Agent gives notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State
thereof who is reasonably acceptable to the Borrowers and has a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall
be discharged from its duties and obligations under this Agreement. After
any retiring Agent's resignation hereunder as Agent the provisions of this
Article X shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent under this Agreement.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Amendments, etc. No amendment or waiver of
any provision of this Agreement or the Notes, nor consent to any departure
by any Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by such Borrower and the Required Lenders,
and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given, provided that (a) no
amendment, waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (i) increase or decrease the Commitments
of the Lenders (except for a ratable decrease in the Commitments of all
Lenders) or subject the Lenders to any additional obligations, (ii) reduce
the principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, (iii) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts pay-
able hereunder, (iv) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Lenders,
which shall be required for the Lenders or any of them to take any action
hereunder or (v) amend this 11.1, and (b) no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Agent under this Agreement or any Note.
SECTION 11.2 Notices, etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telex, cable communication, facsimile telecopy or similar
writing) and shall be given: if to any Borrower, at its address specified
below its name on the signature pages hereof; if to any Lender, at its
Domestic Lending Office specified below its name on the signature page
hereof; if to any other Lender, at its Domestic Lending Office specified in
the Assignment and Acceptance pursuant to which it became a Lender; and if
to the Agent, at its address at Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Insurance Department, 12th Floor; or, as to each
party, at such other address as shall be designated by such party in a
written notice to the Agent and the Borrowers. All such notices and
communications shall, when mailed, telegraphed, telexed, cabled or
telecopied, be effective (i) on the first Domestic Business Day following
the day timely deposited with Federal Express (or other equivalent national
overnight courier) or United States Express Mail, with the cost of delivery
prepaid or for the account of the sender; (ii) on the fifth Domestic
Business Day following the day duly sent by certified or registered United
States mail, postage prepaid and return receipt requested; or (iii) when
otherwise actually received by the addressee on a Domestic Business Day (or
on the next Domestic Business Day if received after the close of normal
business hours or on any non-Domestic Business Day), except that notices
and communications to the Agent pursuant to Article II or X shall not be
effective until received by the Agent.
SECTION 11.3 No Waiver; Remedies. No failure on the part
of any Lender or the Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 11.4 Costs and Expenses. Each Borrower jointly
and severally agrees to pay within 30 days of demand all reasonable costs
and expenses of the Agent in connection with the preparation, execution,
delivery, modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Agent
with respect thereto and with respect to advising the Agent as to its
rights and responsibilities under this Agreement, and all reasonable costs
and expenses, if any (including, without limitation, reasonable counsel
fees and expenses, which may include the reasonable allocable costs of in-
house counsel), of each Lender and the Agent in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement, the Notes, and the other documents to be delivered
hereunder. Each Borrower jointly and severally agrees to pay, indemnify,
and hold each Lender and the Agent harmless from and against any and all
other liabilities, losses, damages, penalties, actions, judgments and
suits, and related reasonable costs, expenses or disbursements, of any kind
or nature whatsoever in connection with or arising out of any governmental
investigation, litigation or proceeding with respect to the execution,
delivery, enforcement and performance of this Agreement, the Notes or the
use of the proceeds of the Advances (all the foregoing, collectively, the
"indemnified liabilities"), provided that no Borrower shall have any
obligation hereunder to the Agent or any Lender with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of the
Agent or any such Lender. The agreements in this Section 11.4 shall
survive repayment of the Notes and all other amounts payable hereunder.
SECTION 11.5 Right of Set-off. Upon (a) the occurrence
and during the continuance of any Event of Default and (b) the making of
the request or the granting of the consent specified by Section 9.1 to
authorize the Agent to declare the Notes due and payable pursuant to the
provisions of Section 9.1, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional
or final) at any time held by such Lender to or for the credit or the
account of any Borrower against any and all of the obligations of such
Borrower now or hereafter existing under this Agreement and the Notes held
by such Lender, irrespective of whether or not such Lender shall have made
any demand under this Agreement or any such Note and although such obliga-
tions may be unmatured. Each Lender agrees promptly to notify such
Borrower after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity
of such set-off and application. The rights of each Lender under this
Section 11.5 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender may have.
SECTION 11.6 Binding Effect. This Agreement shall become
effective when it shall have been executed by each Borrower and the Agent
and when the Agent shall have been notified by each Lender that such Lender
has executed it and thereafter shall be binding upon and inure to the
benefit of each Borrower, the Agent and each Lender and their respective
successors and assigns, except that no Borrower shall have the right to
assign its rights hereunder or any interest herein without the prior
written consent of the Lenders.
SECTION 11.7 Assignments and Participations. Each
Lender may, and if demanded by any Borrower (following a demand by such
Lender pursuant to Section 2.17 or 3.3) upon at least 10 Domestic Business
Days' notice to such Lender and the Agent will, assign to one or more banks
or other entities all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it),
provided that (i) each such assignment shall be of a constant, and not a
varying, percentage of all of the assigning Lender's rights and obligations
under this Agreement, (ii) each such assignment shall be to an Eligible
Assignee, (iii) the amount of the Commitment of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no
event be less than $10,000,000 (or 100% of such Lender's remaining
Commitment, if less than $10,000,000), (iv) the Agent and SunAmerica, on
behalf of itself and the other Borrowers, shall have consented in writing
to such assignment, which consent shall not be unreasonably withheld
(provided, that no such consent of SunAmerica shall be required in the case
of an assignment by a Bank to an affiliate or subsidiary of such Bank), and
(v) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance substantially in the form of Exhibit G hereto, together with any
Note or Notes subject to such assignment. In connection with any such
assignment, the Lender assignor shall pay to the Agent a processing and
recordation fee of $3,000. Upon such execution, delivery, acceptance and
recordation and upon payment by the Lender assignee to such Lender assignor
of an amount equal to the purchase price agreed between such Lender
assignor and such Lender assignee, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be
at least 3 Domestic Business Days after the execution thereof, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder, and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be
a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility
with respect to the financial condition of any Borrower or the performance
or observance by any Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 5.6
and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance
upon the Agent, such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Agent by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in
Section 11.2 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The
entries in the Register shall be prima facie evidence of amounts due, and
each Borrower, the Agent and the Lenders may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers
or any Lender at any reasonable time and from time to time upon reasonable
prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit G hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrowers. Within 10 Domestic
Business Days after its receipt of such notice, the Borrowers, at their own
expense, shall execute and deliver to the Agent in exchange for the
surrendered Notes a new Note to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment
and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Note to the order of the assigning Lender in an amount
equal to the Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes and shall be dated the effective
date of such Assignment and Acceptance.
(e) Each Lender may sell participations to one or more banks
or financial institutions in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note or Notes
held by it), provided that (i) such Lender's obligations under this
Agreement (including, without limitation, its Commitment to the Borrowers
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for
all purposes of this Agreement, (iv) the Borrowers, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement,
and (v) any agreement pursuant to which such Lender sells such
participation shall provide that such Lender shall retain the sole right
and responsibility to enforce the obligations of the Borrowers hereunder
including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement other than, if
provided in such participation agreement, the right of the participant
thereunder to consent to a modification, amendment or waiver described in
clause (i), (ii) or (iii) of Section 11.1. The Borrowers agree that each
participant shall, to the extent provided in its participation agreement,
be entitled to the benefits of Section 2.14 or Article III with respect to
its participating interest (provided that any resulting costs to the
Borrowers would not exceed those which would have otherwise been payable to
the Lender which shall have sold the participation to such participant).
(f) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation
pursuant to this Section 11.7, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the Borrowers
furnished to such Lender by or on behalf of the Borrowers, provided that,
through the Agent, each Lender will notify the Borrowers of its intent to
disclose such information and prior to any such disclosure of information
designated by a Borrower as confidential, each such assignee or participant
or proposed assignee or participant shall execute a confidentiality
agreement with the Borrowers whereby such assignee or participant shall
agree (subject to the exceptions set forth therein) to preserve the con-
fidentiality of such confidential information.
(g) Notwithstanding any other provision of this Section 11.7,
any Lender may at any time assign all or any portion of its rights under
this Agreement and its Notes to, or create a security interest therein in
favor of, any Federal Reserve Bank, provided that no such assignment or
grant shall release such Lender from its obligations hereunder.
SECTION 11.8 Submission to Jurisdiction; Waiver of Jury
Trial. For the purpose of assuring that the Agent and the Lenders may
enforce their respective rights under this Agreement, each Borrower hereby
irrevocably (a) agrees that any legal or equitable action, suit or
proceeding against the Borrowers arising out of or relating to this
Agreement or any transaction contemplated hereby or the subject matter
hereof or thereof may be instituted in any state or federal court in the
State of New York, (b) waives any objection that it may now or hereafter
have to the venue of any action, suit or proceeding, (c) irrevocably
submits itself to the nonexclusive jurisdiction of any state or federal
court of competent jurisdiction in the State of New York for purposes of
any such action, suit or proceeding, and (d) irrevocably waives personal
service of process and hereby consents to service of process upon it by
certified or registered mail, return receipt requested, at its address
specified in accordance with Section 11.2 and service so made shall be
deemed completed on the third business day after such service is deposited
in the mail. Nothing contained in this Section 11.8 shall be deemed to
affect the right of the Agent and the Lenders to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise
proceed against the Borrowers in any jurisdiction. THE BORROWERS, THE
AGENT, AND THE LENDERS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING TO WHICH THEY ARE EACH PARTIES INVOLVING, DIRECTLY OR INDI-
RECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONCERNED WITH
THIS AGREEMENT AND THE NOTES.
SECTION 11.9 Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 11.10 Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute
one and the same agreement.
SECTION 11.11 Collateral. Each Lender represents to the
Agent and each other Lender that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension
or maintenance of the credit provided for in this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
SUNAMERICA INC.
▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. RICHLAND
Name: ▇▇▇▇▇ ▇. Richland
Title: VP & AT
SUNAMERICA FINANCIAL, INC.
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. RICHLAND
Name: ▇▇▇▇▇ ▇. Richland
Title: VP & AT
CITIBANK, N.A.,
in its capacity as
Agent and Lender,
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Lenders
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION
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Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK
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Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: [illegible]
Name: [illegible]
Title: Vice President
THE CHASE MANHATTAN BANK, N.A.
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
CHEMICAL BANK
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
FIRST INTERSTATE BANK, LTD.
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
Two California Plaza
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Attention: ▇▇. ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: /s/ KAZUTAKE KIYOTO
Name: Mr. Kazutaka Kiyoto
Title: Senior Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ Fall
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
NATIONSBANK OF GEORGIA, N.A.
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Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK AND CAYMAN ISLANDS BRANCHES
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Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President Title: Associate
with a copy to:
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▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SCHEDULE 1 TO CREDIT AGREEMENT
Name of Lender Commitment
CITIBANK, N.A. $ 23,000,000
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION $ 22,700,000
THE BANK OF NEW YORK $ 22,700,000
THE CHASE MANHATTAN BANK, N.A. $ 22,700,000
CHEMICAL BANK $ 22,700,000
FIRST INTERSTATE BANK, LTD. $ 22,700,000
THE FIRST NATIONAL BANK OF CHICAGO $ 22,700,000
THE INDUSTRIAL BANK OF JAPAN, LIMITED $ 22,700,000
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK $ 22,700,000
NATIONSBANK OF GEORGIA, N.A. $ 22,700,000
WESTDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK AND CAYMAN ISLANDS BRANCHES $ 22,700,000
____________
$250,000,000
Exhibit A
Form of Note
New York, New York
__________ ___, 1995
For value received, SUNAMERICA INC., a Maryland
corporation and SUNAMERICA FINANCIAL, INC., a Georgia corporation (collec-
tively, the "Borrowers"), jointly and severally promise to pay to the order
of [NAME OF LENDER] (the "Lender"), for the account of its Applicable
Lending Office, the unpaid principal amount of each Advance made by the
Lender to the Borrowers pursuant to the Credit Agreement referred to below
on the last day of the Interest Period relating to such Advance. The
Borrowers jointly and severally promise to pay interest on the unpaid
principal amount of each such Advance on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or
other immediately available funds at the office of Citibank, N.A., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Insurance Department, 12th
Floor.
All Advances made by the Lender, the respective Types and
maturities thereof and all repayments of the principal thereof shall be
recorded by the Lender and, prior to any transfer hereof, appropriate
notations to evidence the foregoing information with respect to each such
Advance then outstanding shall be endorsed by the Lender on the schedule
attached hereto, or on a continuation of such schedule attached to and made
a part hereof, provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrow-
ers hereunder or under the Credit Agreement.
This Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement, dated as of October 27,
1995, among the Borrowers, the Lenders listed on the signature pages
thereof and Citibank, N.A., as Agent for the Lenders, providing for a
$250,000,000 revolving credit facility (as the same may be amended from
time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the acceleration of the maturity hereof
upon the happening of certain events and the prepayment hereof upon the
terms and conditions therein specified.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
SUNAMERICA INC.
By ________________________
Name:
Title:
SUNAMERICA FINANCIAL, INC.
By ________________________
Name:
Title:
Form of Note (cont'd)
ADVANCES AND PAYMENTS OF PRINCIPAL
____________________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Advance Advance RepaidDate Made by
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
Exhibit B
Form of Notice of
Committed Borrowing
[DATE]
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Insurance Department
12th Floor
Ladies and Gentlemen:
The undersigned, [Borrower], a ______________ corporation,
on behalf of itself and the other Borrowers, refers to the Credit
Agreement, dated as of October 27, 1995, providing for a $250,000,000
revolving credit facility, (as from time to time amended, the "Credit
Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, the other Borrowers, the Lenders listed on
the signature pages thereof and Citibank, N.A., as Agent for the Lenders,
and hereby gives notice pursuant to Section 2.2 of the Credit Agreement
that the undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating
to such Borrowing (the "Proposed Borrowing") as required by Section 2.2 of
the Credit Agreement:
(i) the [Domestic Business Day] [Eurodollar Business Day] of
the Proposed Borrowing is ____________, 199__;
(ii) the aggregate amount of the Proposed Borrowing is
$________________;*
(iii) the Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Advances];
(iv) Level [I] [II] [III] Status exists on the
date of this Notice; and
(v) the Interest Period for each Advance made as part of the
Proposed Borrowing is [______ days] [______ month[s]].
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Borrowing:
(A) the representations and warranties contained in
Article V of the Credit Agreement are true and correct, before and after
giving effect to the Proposed Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, except to the
extent they were expressly made as of the Effective Date or expressly
relate to a prior date, provided that such representations and warranties
do not include those set forth in Sections 5.6(b)(iii) and 5.7;
(B) no Default exists or will result from such Proposed
Borrowing; and
(C) the outstanding aggregate principal amount of all
Advances, after giving effect to the Proposed Borrowing, will not exceed
the aggregate amount of all Commitments in effect as of the date of such
Proposed Borrowing.
Very truly yours,
[BORROWER]
By____________________
Title:
* Amount must be $10,000,000 or a larger multiple of $5,000,000 (or
such other amount as equals the aggregate amount of the unused
Commitments).
Exhibit C
Form of Money Market Quote Request
[DATE]
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Insurance Department
12th Floor
Ladies and Gentlemen:
The undersigned, [Borrower], a ___________ corporation, on
behalf of itself and the other Borrowers, refers to the Credit Agreement,
dated as of October 27, 1995 providing for a $250,000,000 revolving credit
facility (as from time to time amended, the "Credit Agreement", the terms
defined therein being used herein as therein defined), among the
undersigned, the other Borrowers, the Lenders listed on the signature pages
thereof and Citibank, N.A., as Agent for the Lenders, and hereby requests,
pursuant to Section 2.3(b) of the Credit Agreement, Money Market Quotes
under the Credit Agreement for a Borrowing comprised of Money Market
Advances, and in that connection sets forth below the information relating
to any such Borrowing (the "Proposed Borrowing"):
(i) the [Domestic Business Day] [Eurodollar Business Day] of
the Proposed Borrowing is _____________, 199__;
(ii) the aggregate amount of the Proposed Borrowing is
$__________;*
(iii) such Money Market Quote shall offer a Money Market
[Margin] [Absolute Rate]; and
(iv) the Interest Period for each Advance made as part of the
Proposed Borrowing is _______.**
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Borrowing:
(A) the representations and warranties contained in
Article V of the Credit Agreement are true and correct, before and after
giving effect to the Proposed Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, except to the
extent they were expressly made as of the Effective Date or expressly
relate to a prior date, provided that such representations and warranties
do not include those set forth in Sections 5.6(b)(iii) and 5.7;
(B) no Default exists or will result from such Proposed
Borrowing; and
(C) the outstanding aggregate principal amount of all
Advances, after giving effect to the Proposed Borrowing, will not
exceed the aggregate amount of all Commitments in effect as of the
date of such Proposed Borrowing.
Very truly yours,
[BORROWER]
By____________________
Title:
* Amount must be $10,000,000 or a larger multiple of $5,000,000 (or such
other amount as equals the aggregate amount of the unused commitments).
** Not less than 7 nor more than 180 days for each Money Market Absolute
Rate Advance, and 1,2,3, or 6 months for each Money Absolute Rate Advance,
and 1,2,3, or 6 months for each money. Marke LIBOR Advance, in ea. case
subject to the provisions of the definition of Interest Period.
Exhibit D
Form of Invitation for Money Market Quotes
[DATE]
[Name of Lender]
[Address]
Attention: ________________
Ladies and Gentlemen:
Pursuant to Section 2.3(c) of the Credit Agreement, dated
as of October 27, 1995 providing for a $250,000,000 revolving credit
facility (as from time to time amended, the "Credit Agreement", the terms
defined therein being used herein as therein defined), among SunAmerica
Inc., a Maryland corporation, SunAmerica Financial, Inc., a Georgia
corporation (collectively, the "Borrowers"), the Lenders listed on the
signatures pages thereof and Citibank, N.A., as Agent for the Lenders, we
are pleased on behalf of the Borrowers to invite you to submit Money Market
Quotes to the Borrowers for the following proposed Money Market
Borrowing(s):
Date of Borrowing: _____________________
Principal Amount Interest Period
$
Such Money Market Quotes shall offer a Money Market
(Margin] [Absolute Rate].
Please respond to this invitation by no later than [2:00
P.M.] [10:00 A.M.] New York City time on (date].
CITIBANK, N.A., as Agent
By_____________________
Authorized officer
Exhibit E
Form of Money Market Quote
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Insurance Department
12th Floor
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of
October 27, 1995, providing for a $250,000,000 revolving credit facility
(as from time to time amended, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among SunAmerica Inc., a
Maryland corporation, SunAmerica Financial, Inc., a Georgia corporation
(collectively, the "Borrowers"), the Lenders listed on the signatures pages
thereof and Citibank, N.A., as Agent for the Lenders. In response to your
invitation on behalf of the Borrowers, dated ___________, 199_, we hereby
make the following Money Market Quote on the following terms:
1. Quoting Lender: _______________________________________
2. Person to contact at Quoting Lender:
3. Date of Borrowing: _________________*
4. We hereby offer to make Money Market Advance(s) in the following
principal amounts, for the following Interest Periods and at the following
rates:
Principal Interest Money Market [Absolute
Amount** Period*** [Margin****] Rate*****]
$
$
[Provided, that the aggregate principal amount of Money Market
Advances for which the above offers may be accepted shall not exceed
$_______________.]**
We understand and agree that the offer(s) set
forth above, subject to the satisfaction of the applicable
conditions set forth in the Credit Agreement, irrevocably
obligates us to make the Money Market Advance(s) for which any
offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
Dated: _______________ By:______________________
Authorized officer
* As specified in the related Invitation.
** Principal amount bid may not exceed the principal amount
requested. Specify aggregate limitation if the sum of the individual
offers exceeds the amount the Lender is willing to lend. Bids must be made
for $5,000,000 or a larger multiple of $1,000,000.
*** As specified in the related Invitation. No more than 5 bids are
permitted for each Interest Period.
**** Margin over or under the London Interbank Offered Rate determined
for the applicable Interest Period. Specify percentage (to the nearest
1/10,000 of 1% and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th of
1%).
Exhibit F
October __, 1995
To the Lenders listed
on Annex A hereto
SunAmerica Inc.
Ladies and Gentlemen:
I am Vice President and General Counsel - Corporate
Affairs of SunAmerica Inc., a Maryland corporation ("SunAmerica") and have
acted as such in connection with the Credit Agreement dated as of October
27, 1995 (the "Credit Agreement") by and among SunAmerica and SunAmerica
Financial, Inc., a Georgia corporation ("SAFI") (SunAmerica and SAFI are
each referred to as a "Borrower" and are collectively referred to as
"Borrowers"), Citibank, N.A., as Agent (the "Agent") and the Lenders named
therein (the "Lenders") and the $250,000,000 loan facility contemplated by
the Credit Agreement. Capitalized terms used herein, unless otherwise
expressly defined, have the meanings specified in the Credit Agreement.
I have examined and relied upon the originals, or copies
certified or otherwise identified to my satisfaction, of such records,
documents, certificates and other instruments, and have made such other
investigations or inquiries and considered such questions of law, as in my
judgment are necessary or appropriate to enable me to render the opinions
expressed below. In particular, I have examined or caused to be examined
under my direction certificates of public officials, and copies, certified
to my satisfaction, of such corporate documents and records of the
Borrowers and of the Material Subsidiaries and of First Sun and of such
other persons as I have deemed relevant and necessary as a basis for this
opinion. In addition, I have relied, to the extent I have deemed such
reliance proper, upon certificates of officers of the Borrowers and of the
Material Subsidiaries and of First Sun with respect to the accuracy of
certain material factual matters which were not independently established.
I have assumed the authenticity of all documents submitted
to me as originals, the conformity to originals of all documents submitted
to me as copies and the genuineness of all signatures on such documents. I
have also assumed that the Credit Agreement has been duly authorized,
executed and delivered by all parties thereto other than the Borrowers, and
constitutes all such other parties respective legal, valid, binding and
enforceable obligations. Based on an officer's certificate of an officer
of SunAmerica with respect to the definition in Section 1.01 of the Credit
Agreement of the term "Material Subsidiary", the term "Material Subsidiary"
means SunAmerica Life and Anchor.
For purposes of the opinion in the second sentence of
paragraph 4 below, I have reviewed the opinion of Messrs. Milbank, Tweed,
▇▇▇▇▇▇ & ▇▇▇▇▇▇ dated _________________ to the effect that the Credit
Agreement and the Notes constitute the legal, valid, binding and
enforceable obligations of the Borrowers under the laws of the State of New
York, and I have assumed that the Lenders and the Agent shall act in good
faith and in a commercially reasonable manner in all matters in connection
with the Credit Agreement and the Notes, and that the laws of the State of
California are the same as the laws of the State of New York.
I am an attorney admitted to practice in the State of
California, and I express no opinion as to any laws other than the laws of
the State of California and the federal laws of the United States of
America and for the purposes of the opinions with respect to the relevant
Borrower or Material Subsidiary, as the case may be, in paragraphs 1, 4
(but only to the extent of the first sentence thereof and as to execution
of the Credit Agreement and the Notes) and 6 below, the general corporation
laws of the States of Maryland and Georgia.
Based upon and subject to the foregoing, I am of the
opinion that:
1. Each Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation, and has all requisite corporate power and authority to own
or lease and to operate its properties and to carry on its business as now
conducted. Each Borrower is duly qualified to transact business, and is in
good standing as a foreign corporation authorized to transact business, in
each jurisdiction where the ownership, leasing or operation of its
properties or the conduct of its business makes such qualification
necessary, except where the failure to so qualify or be in good standing
would not have a Material Adverse Effect.
2. The execution, delivery and performance by each
Borrower of the Credit Agreement and the Notes does not (a) to the best of
my knowledge, violate any law or statute or any rule or regulation of any
relevant Governmental Authority applicable to either Borrower, (b) to the
best of my knowledge, contravene or conflict with any order, writ, judgment
or decree of any court, arbitrator or any Governmental Authority or result
in any breach of or constitute a default under any agreement or instrument
binding on either Borrower, or (c) contravene or conflict with any
provision of the Articles of Incorporation or Bylaws of either Borrower.
3. No material order, consent, approval, license,
authorization or validation of, or material filing, recording or
registration with or exemption by, any Governmental Authority regulating
either Borrower is required in connection with the borrowings under the
Credit Agreement or the execution, delivery or performance by each Borrower
of the Credit Agreement or the Notes or the validity or enforceability of
the Credit Agreement or the Notes, except such disclosure as may be
necessary or appropriate under securities laws.
4. Each Borrower has taken all necessary action to
authorize the borrowings under the Credit Agreement and the execution,
delivery and performance by such Borrower of the Credit Agreement and the
Notes. Each Borrower has duly executed and delivered the Credit Agreement
and the Notes, and the Credit Agreement and the Notes constitute legal,
valid and binding obligations of each Borrower enforceable against such
Borrower in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws of general application relating
to or affecting the rights and remedies of creditors and general principles
of equity (regardless of whether asserted in a proceeding in equity or at
law).
5. To the best of my knowledge, there is no action,
suit or proceeding pending or threatened against any Borrower or any
Material Subsidiary before any court or arbitrator or any governmental body
or agency for which I believe there is a reasonable likelihood of an
adverse decision which I believe would have a Material Adverse Effect or
which questions the validity of the Credit Agreement or the Notes.
6. Anchor is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to own or
lease and to operate its properties and to carry on its business as now
conducted.
7. SunAmerica Life is a validly existing and in good
standing under the laws of the State of Arizona, it being understood that
this opinion is based solely on the certificate of the Executive Secretary
of the Office of the Corporation Commission of the State of Arizona dated
October 11, 1995 and a letter from CT Corporation System dated as of
October ___, 1995 stating that as of such date SunAmerica Life is in good
standing in the State of Arizona.
8. Neither of the Borrowers is an "investment
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
9. Each Borrower and each Material Subsidiary has all
licenses, franchises, permits and other governmental authorizations
necessary for the businesses presently carried on by them except where the
failure to do so would not individually or in the aggregate have a Material
Adverse Effect.
10. No material License of an Insurance Subsidiary
(i.e., SunAmerica Life, Anchor or First Sun) is the subject of a proceeding
for suspension or revocation, except where such suspension or revocation
would not individually or in the aggregate have a Material Adverse Effect.
I express no opinion as to the enforceability of
provisions of the Credit Agreement and the Notes (a) which broadly or
vaguely waive stated rights, statutory rights, constitutional rights or
unknown future rights, (b) to the effect that rights or remedies are not
exclusive, that every right or remedy is cumulative, that the election of a
particular remedy or remedies does not preclude recourse to one or more
other remedies, that the failure to exercise or delay in exercising any
remedy does not affect or waive any rights or remedies, and that waivers,
amendments or modifications may only be made in writing, (c) imposing
charges in the nature of forfeitures, penalties, unreasonable liquidated
damages or late charges, (d) requiring any party to indemnify any other
party against loss for such other party's own negligence, tortious conduct,
wrongful or unlawful act or violation of public policy, (e) waiving,
expressly or by implication, presentment, demand, protest or notice, or the
right to object to the laying of the venue of any suit, action or
proceeding, or the right to claim that any suit, action or proceeding has
been brought in an inconvenient forum, or the right to a jury trial or to
due process of law, or other rights, remedies, claims or defenses, to the
extent such waivers are contrary to law or are or would be found to be
against public policy, (f) requiring the Borrowers to pay attorneys' fees
of the Lenders or the Agent in connection with any proceeding in which the
Lenders or the Agent are not the prevailing party, (g) the provisions of
the last sentence of Section 11.07(e) of the Agreement or (h) which provide
that actions may be taken or that decisions may be made at the discretion
or judgment of the Agent or any Lenders or arbitrarily by the Agent or any
Lenders.
This opinion is rendered as of the date set forth above
and I shall have no responsibility to advise you of any changes, facts or
circumstances after the date hereof. This letter may not be relied upon by
any other person or entity except counsel to the Agent and the Lenders.
This opinion may not be furnished without my prior consent to any person or
entity other than potential assignees or participants or as may be required
by applicable law or regulators.
Very truly yours,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Annex A
CITIBANK, N.A.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
THE BANK OF NEW YORK
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▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE ▇▇▇▇▇ MANHATTAN BANK, N.A.
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
CHEMICAL BANK
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
FIRST INTERSTATE BANK, LTD.
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
THE FIRST NATIONAL BANK OF CHICAGO
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
Two California Plaza
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ & COMPANY, INC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ Fall
NATIONS BANK OF GEORGIA, N.A.
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Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
WESTDEUTSCHE LANDESBANK GIROZENTRALE
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
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Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Exhibit G
ASSIGNMENT AND ACCEPTANCE
Dated ___________, 199__
Reference is made to the Credit Agreement, dated as of
October 27, 1995, providing for a $250,000,000 revolving credit facility
(the "Credit Agreement"), among SunAmerica Inc., a Maryland corporation
("SunAmerica") and SunAmerica Financial, Inc., a Georgia corporation
(together with SunAmerica, the "Borrowers"), the Lenders identified on the
signature pages thereof and Citibank, N.A., as Agent for the Lenders (the
"Agent"). Terms defined in the Credit Agreement are used herein with the
same meanings.
______________ (the "Assignor") and ____________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
and the Assignee hereby purchases and assumes from the Assignor, for a
purchase price of $ __________, a ____ % interest in and to all of the
Assignor's rights and obligations under the Credit Agreement as of the
Effective Date (as defined in paragraph 4 below) (including, without
limitation, such percentage interest in the Assignor's Commitment as in
effect on the Effective Date (before giving effect to any Money Market
Reduction), the Advances (including Money Market Advances) owing to the
Assignor on the Effective Date, and the Notes held by the Assignor). *
Schedule 1 hereto sets forth the respective Commitments and Advances of the
Assignor and the Assignee immediately after giving effect to this
Assignment and Acceptance.
2. The Assignor (i) represents and warrants that as of
the date hereof its Commitment (without giving effect to assignments
thereof which have not yet become effective or any Monday Market Reduction)
is $___________, and the aggregate outstanding principal amount of Advances
owing to it (without giving effect to assignments thereof which have not
yet become effective) is $____________; (ii) represents and warrants that
it is the legal an beneficial owner of the interests being assigned by it
hereunder and that such interest is free and clear of any adverse claim;
(iii) makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement
or any other instrument or document furnished pursuant thereto; (iv) makes
no representation or warranty and assumes no responsibility with respect to
the financial condition of any Borrower or the performance or observance by
any Borrower of any of its obligations under the Credit Agreement or any
other instrument or document furnished pursuant thereto; and (v) attaches
the Note referred to in paragraph 1 above and requests that the Agent
exchange such Note for [a new Note dated _________, 199_ in the principal
amount of $________, payable to the order of the Assignee] [new Notes as
follows: a Note dated _________, 199_ in the principal amount of $________,
payable to the order of the Assignee, and a Note dated _________, 199_ in
the principal amount of $__________, payable to the order of the Assignor].
3. The Assignee (i) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial statements
referred to in Section 5.6 thereof and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) confirms that
it is an Eligible Assignee; (iv) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under the
Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement are required to be performed by
it as a Lender; [and] (vi) specifies as its Domestic Lending Office [and
address for notices), Money Market Lending Office and Eurodollar Lending
Office the offices set forth beneath its name on the signature pages hereof
[and (vii) attaches the forms prescribed by the Internal Revenue Service of
the United States evidencing their exemption from U.S. withholding
taxes].**
4. The effective date for this Assignment and Acceptance
shall be __________ (the "Effective Date")***. Following, and subject to,
the consent in writing by the Agent and SunAmerica, on behalf of itself and
the other Borrowers, to such assignment and the execution of this
Assignment and Acceptance, this Assignment and Acceptance will be delivered
to the Agent together with the processing fee specified in Section 11.7(a)
of the Credit Agreement, for acceptance and recording by the Agent.
5. Upon such acceptance and recording and the payment by
the Assignee to the Assignor of the purchase price specified in paragraph 1
above, as of the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in the Credit Agreement, have
the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent provided in the Credit Agreement, relinquish its
rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording, from and after the
Effective Date, the Agent shall make all payments under the Credit
Agreement and the Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and
fees with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit
Agreement and the Notes for periods prior to the Effective Date directly
between themselves.
7. This Assignment and Acceptance shall be governed by,
and construed in accordance with, the laws of the State of New York.
[NAME OF ASSIGNOR]
By______________________
Name:
Title:
[NAME OF ASSIGNEE]
By______________________
Name:
Title:
Domestic Lending office
(and address for notices):
[Address]
Money Market Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted and consented
to this ______ day of
____________, 199_
CITIBANK, N.A., as Agent
By______________________
Name:
Title:
SUNAMERICA INC.
By______________________
Name:
Title:
* The amount of Commitments being assigned shall comply with Section
11.7(a) of the Credit Agreement.
** If the Assignee is organized under the laws of a jurisdiction
outside the United States.
*** See Section 11.7(a). Such date shall be at least 3 Domestic
Business Days after the execution of this Assignment and Acceptance.
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Dated __________, 199_
Assignor's Commitment:$
Aggregate Outstanding Principal
Amount of Committed Advances
Owing to Assignor $
Aggregate Outstanding Principal
Amount of Money Market Advances
Owing to Assignor $
Assignee's Commitment:$
Aggregate Outstanding Principal
Amount of Committed Advances
Owing to Assignee $
Aggregate Outstanding Principal
Amount of Money Market Advances
Owing to Assignee $