EXHIBIT 10(a)
NASD
SUBORDINATED LOAN AGREEMENT
FOR EQUITY CAPITAL
SL-5
AGREEMENT BETWEEN:
Lender SunAmerica Inc.
(Name)
1 SunAmerica Center,
1999 Avenue of the Stars, ▇▇▇▇ ▇▇▇▇▇
(▇▇▇▇▇▇ ▇▇▇▇▇▇▇)
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(City) (State) (Zip)
AND
Borrower Capital Services Inc.
(Name)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
(▇▇▇▇▇▇ Address)
New York New York 10017
(City) (State) (Zip)
NASD IDNO: 13158
Date Filed: NASD
RECEIVED: March 26, 1999
NASD Form SL-5
SUBORDINATED LOAN AGREEMENT
FOR EQUITY CAPITAL
AGREEMENT DATED March 12, 1999 to be
effective March 19, 1999 between SunAmerica, Inc. (the
"Lender") and SunAmerica Capital Services, Inc. (the
"Broker-Dealer").
In consideration of the sum of $3,000,00 and subject
to the terms and conditions hereinafter set forth, the
Broker-Dealer promises to pay to the Lender or assigns on
April 30, 2002 (the "Scheduled Maturity Date") (the last
day of the month at least three years from the effective
date of this Agreement) at the principal office of the
Broker-Dealer the aforedescribed sum and interest thereon
payable at the rate of 8.5* % per annum from the
effective date of this Agreement, which date shall be the
date so agreed upon by the Lender and the Broker-Dealer
unless otherwise determined by the National Association of
Securities Dealers, Inc. (the "NASD"). This agreement shall
not be considered a satisfactory subordination agreement
pursuant to the provisions of 17 CFR 240.15c3-d unless and
until the NASD has found the Agreement acceptable and such
Agreement has become effective in the form found acceptable.
The cash proceeds covered by this Agreement shall be
used and dealt with by the Broker-Dealer as part of its
capital and shall be subject to the risks of the business.
The Broker-Dealer shall have the right to deposit any cash
proceeds of the Subordinated Loan Agreement in an account or
accounts in its own name in any bank or trust company.
The Lender irrevocably agrees that the obligations of
the Broker-Dealer under this Agreement with respect to the
payment of principal and interest shall be and are
subordinate in right of payment and subject to the prior
payments or provision for payment in full of all claims of
all other present and future creditors of the Broker-Dealer
arising out of any matter occurring prior to the date on
which the related Payment Obligation (as defined herein)
matures consistent with the provisions of 17 CFR 240.15c3-1
and 240.15c3-1d, except for claims which are the subject of
subordination agreements which rank on the same priority as
or are junior to the claim of the Lender under such
subordination agreements.
I. PERMISSIVE PREPAYMENTS (OPTIONAL)
At the option of the Broker-Dealer, but not at the
option of the Lender, payment of all or any part of the
"Payment Obligation" amount hereof prior to the maturity
date may be made by the Broker-Dealer, but in no event may
any prepayment be made before the expiration of one year
from the date this Agreement Became effective. No
prepayment shall be made if, after giving effect thereto
(and to all payments for Payment Obligations under any other
subordination agreements then outstanding, the maturity of
which are scheduled to fall due either within six months
after the date such prepayment is to occur or on or prior to
the date on which the Payment Obligation hereof is scheduled
to mature, whichever date is earlier), without reference to
any projected profit or loss of the Broker-Dealer, either
aggregate indebtedness of the Broker-Dealer would exceed
1000 percent of its net capital or such lesser percent as
may be made applicable to the Broker-Dealer from time to
time by a governmental agency or self-regulatory body having
appropriate authority, or if the Broker-Dealer is operating
pursuant to paragraph (a)(1)(ii) of 17 CFR 240.15c3-1, its
net capital would be less than five percent of aggregate
debit items computed in accordance with 17 CFR 240.15c3-3a,
or if registered as a futures commission merchant, 7 percent
of the funds required to be segregated pursuant to the
Commodity Exchange Act and the regulations thereunder (less
the market value of commodity options purchased by option
customers on or subject to the rules of a contract market,
provided, however, the deduction for each option customer
shall be limited to the amount of customer funds in such
option customer's account), if greater, or its net capital
would be less than 120 percent of the minimum dollar amount
required by 17 CFR 240.15c3-1 including paragraph
(a)(1)(ii), if applicable, or such greater dollar amount as
may be made applicable to the Broker-Dealer by the NASD, or
governmental agency or self-regulatory body having
appropriate authority.
* Interest to be paid quarterly from the effective date of
this Agreement.
II. SUSPENDED REPAYMENTS
(a) The Payment Obligation of the Broker-Dealer shall be
suspended and shall not mature if after giving effect to
such payment (together with the payment of any Payment
Obligation, of the Broker-Dealer under any other
subordination agreement scheduled to mature on or before
such Payment Obligation) the aggregate indebtedness of the
Broker-Dealer would exceed 1200 percent of its net capital
or such lesser percent as may be made applicable to the
Broker-Dealer from time to time by the NASD, or a
governmental agency or self-regulatory body having
appropriate authority, or if the Broker-Dealer is operating
pursuant to paragraph (f) of 17 CFR 240.15c3-1, its net
capital would be less than 5 percent of aggregate debit
items computed in accordance with 17 CFR 240.15c3-3a, or if
registered as a futures commission merchant, 6 percent of
the funds required to be segregated pursuant to the
Commodity Exchange Act and the regulations thereunder, (less
the market value of commodity options purchased by option
customers on or subject to the rules of a contract market,
provided, however, the deduction for each option customer
shall be limited to the amount of customer funds in such
option customer's account), if greater, or its net capital
would be less than 120 percent of the minimum dollar amount
required by 17 CFR 240.15c3-1 including paragraph
(a)(1)(ii), if applicable, or such greater dollar amount as
may be made applicable to the Broker-Dealer by the NASD, or
a governmental agency or self-regulatory body having
appropriate authority.
III. NOTICE OF MATURITY
The Broker-Dealer shall immediately notify the NASD if,
after giving effect to all payments of Payment Obligations
under subordination agreements then outstanding which are
then due or mature within six months without reference to
any projected profit or loss of the Broker-Dealer, either
the aggregate indebtedness of the Broker-Dealer would exceed
1200 percent of its net capital, or in the case of a
Broker-Dealer operating pursuant to paragraph (a)(1)(ii) of
17 CFR 240.15c3-1, its net capital would be less than 5
percent of aggregate debit items computed in accordance with
17 CFR 240.15c3-3a, or if registered as a futures commission
merchant 6 percent of the funds required to be segregated
pursuant to the Commodity Exchange Act and the regulations
thereunder, (less the market value of commodity options
purchased by option customers on or subject to the rules of
a contract market, provided, however, the deduction for each
option customer shall be limited to the amount of customer
funds in such option customer's account,) if greater, and in
either case, if its net capital would be less than 120
percent of the minimum dollar amount required by 17 CFR
240.15c3-1 including paragraph (a)(1)(ii), if applicable, or
such greater dollar amount as may be made applicable to the
Broker-Dealer by the NASD, or a governmental agency or
self-regulatory body having appropriate authority.
IV. BROKER-DEALERS CARRYING THE ACCOUNTS OF
SPECIALISTS AND MARKET MAKERS IN LISTED OPTIONS
A Broker-Dealer who guarantees, endorses, carries or
clears specialist or market-maker transactions in options
listed on a national securities exchange or facility of a
national securities association shall not permit a
reduction, prepayment, or repayment of the unpaid principal
amount if the effect would cause the equity required in such
specialist or market-maker accounts to exceed 1000 percent
of the Broker-Dealer's net capital or such percent as may be
made applicable to the Broker-Dealer from time to time by
the NASD, or a governmental agency or self-regulatory body
having appropriate authority.
V. LIMITATION ON WITHDRAWAL OF EQUITY CAPITAL
The proceeds covered by this Agreement shall in all
respects be subject to the provisions of paragraph (e) of 17
CFR 240.15c3-1. Pursuant thereto no equity capital of the
Broker-Dealer or a subsidiary or affiliate consolidated
pursuant to 17 CFR 240.15c3-1c, whether in the form of
capital contributions by partners, par or stated value of
capital stock, paid-in capital in excess of par, retained
earnings or other capital accounts, may be withdrawn by
action of a stockholder or partner, or by redemption or
repurchase of shares of stock by any of the consolidated
entities or through the payment of dividends or any similar
distribution, nor may any unsecured advance or loan be made
to a stockholder, partner, sole proprietor, or employee if,
after giving effect thereto and to any other such
withdrawals, advances or loans and any payments of Payment
Obligations under satisfactory subordination agreements
which are scheduled to occur within six months following
such withdrawals, advances or loans, either aggregate
indebtedness of any of the consolidated entities exceeds
1000 percent of its net capital, or in the case of a
Broker-Dealer operating pursuant to paragraph (a)(1)(ii) of
17 CFR 240.15c3-1, its net capital would be less than 5
percent of aggregate debit items computed in accordance with
17 CFR 240.15c3-3a, or if registered as a futures commission
merchant, 7 percent of the funds required to be segregated
pursuant to the Commodity Exchange Act, and the regulations
thereunder (less the market value of commodity options
purchased by option customers on or subject to the rules of
a contract market, provided, however, the deduction for each
option customer shall be limited to the amount of customer
funds in such option customer's account), if greater, and in
either case, if its net capital would be less than 120
percent of the minimum dollar amount required by 17 CFR
240.15c3-1 including paragraph (a)(1)(ii), if applicable, or
such greater dollar amount as may be made applicable to the
Broker-Dealer by the NASD, or a governmental agency or
self-regulatory body having appropriate authority; or
should the Broker-Dealer be included within such
consolidation, if the total outstanding principal amounts of
satisfactory subordination agreements of the Broker-Dealer
(other than such agreements which qualify as equity under
paragraph (d) of 17 CFR 240.15c3-1) would exceed 70 percent
of its debt/equity total, as this term is defined in
paragraph (d) of 17 CFR 240.15c3-1, for a period in excess
of 90 days, or for such longer period which the Commission
may upon application of the Broker-Dealer grant in the
public interest or for the protection of investors.
VI. BROKER-DEALERS REGISTERED WITH CFTC
If the Broker-Dealer is a futures commission merchant
or introductory broker as that term is defined in the
Commodity Exchange Act, the Broker-Dealer agrees, consistent
with the requirements of Section 1.17(h) of the regulations
of the CFTC (17 CFR 1.17(h)), that:
(a) Whenever prior written notice by the
Broker-Dealer to the NASD is required pursuant to the
provisions of this Agreement, the same prior written notice
shall be given by the Broker-Dealer to (i) the CFTC at its
principal office in Washington, D.C., attention Chief
Account of Division of Trading and Markets, and/or (ii) the
commodity exchange of which the Organization is a member and
which is then designated by the CFTC as the Organization's
designated self-regulatory organization (the DSRO);
(b) Whenever prior written consent, permission or
approval of the NASD is required pursuant to the provisions
of this Agreement, the Broker-Dealer shall also obtain the
prior written consent, permission or approval of the CFTC
and/or of the DSRO.
VII. GENERAL
In the event of the appointment of a receiver or
trustee of the Broker-Dealer or in the event of its
insolvency, liquidation pursuant to the Securities Investor
Protection Act of 1970 or otherwise, bankruptcy, assignment
for the benefit of creditors, reorganizations whether or not
pursuant to bankruptcy laws, or any other marshaling of the
assets and liabilities of the Broker-Dealer, the Payment
Obligation of the Broker-Dealer shall mature, and the holder
hereof shall not be entitled to participate or share,
ratably or otherwise, in the distribution of the assets of
the Broker-Dealer until all claims of all other present and
future creditors of the Broker-Dealer, whose claims are
senior hereto, have been fully satisfied.
This Agreement shall not be subject to cancellation by
either the Lender or the Broker-Dealer, and no payment shall
be made, nor the Agreement terminated, rescinded or modified
by mutual consent or otherwise if the effect thereof would
be inconsistent with the requirements of 17 CFR 240.15c3-1
and 240.15c3-d.
The Agreement may not be transferred, sold, assigned,
pledged, or otherwise encumbered or otherwise disposed of,
and no lien, charge, or other encumbrance may be created or
permitted to be created thereof without the prior written
consent of the NASD.
The Lender irrevocably agrees that the loan
evidenced hereby is not being made in reliance upon the
standing of the Broker-Dealer as a member organization of
the NASD or upon the NASD surveillance of the
Broker-Dealer's financial position or its compliance with
the By-laws, rule and practices of the NASD. The Lender has
made such investigation of the Broker-Dealer and its
partners, officers, directors, and stockholders as the
Lender deems necessary and appropriate under the
circumstances.
The Lender is not relying upon the NASD to
provide any information concerning or relating to the
Broker-Dealer and agrees that the NASD has no responsibility
to disclose to the Lender any information concerning or
relating to the Broker-Dealer which it may now, or at any
future time, have.
The term "Broker-Dealer," as used in this Agreement,
shall include the Broker-Dealer, its heirs, executors,
administrators, successors and assigns.
The term "Payment Obligation" shall mean the obligation
of the Borrower to repay cash loaned to it pursuant to this
Subordinated Loan Agreement.
The provisions of this Agreement shall be binding upon
the Broker-Dealer and the Lender, and their respective
heirs, executors, administrators, successors, and assigns.
Any controversy arising out of or relating to this
Agreement may be submitted to and settled by arbitration
pursuant to the By-Laws and rules of the NASD. The
Broker-Dealer and the Lender shall be conclusively bound by
such arbitration.
This instrument embodies the entire agreement between
the Broker-Dealer and the Lender and no other evidence of
such agreement has been or will be executed without prior
written consent of the NASD.
This Agreement shall be deemed to have been made under,
and shall be governed by, the laws of the State of
California in all respects.
IN WITNESS WHEREOF the parties have set their hands and
seal this 12th day of March, 1999.
SunAmerica Capital services, Inc.
(Name of Broker-Dealer)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇ ▇.▇.
(Authorized Person)
By: /s/ SunAmerica, Inc. L.S.
(Lender)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ L.S.
Executive Vice President
FOR NASD USE ONLY
ACCEPTED BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
(Name)
Assistant Director
(Title)
EFFECTIVE DATE: 3/31/99
LOAN NUMBER: 10-E-SLA-10957
SUBORDINATED LOAN AGREEMENT
LOAN ATTESTATION
It is recommended that you discuss the merits of
this investment with an attorney, accountant or some other
person who has knowledge and experience in financial and
business matters prior to executing this Agreement.
1. I have received and reviewed NASD Form SLD,
which is a reprint of 17 CFR 240.15c3-1, and am familiar
with its provisions.
2. I am aware that the funds or securities subject
to this Agreement are not covered by the Securities Investor
Protection Act of 1970.
3. I understand that I will be furnished
financial statements pursuant to SEC
Rule 17a-5(c).
4. On the date this Agreement was entered into, the
Broker-Dealer carried funds or securities for my account.
(State Yes or No) No.
5. Lender's business relationship to the
Broker-Dealer is: Lender is an intermediate holding company
of Broker-Dealer and continues to monitor the fiscal
status and reports of the Broker-Dealer.
6. If not a partner or stockholder is not actively
engaged in the business of the Broker-Dealer, acknowledge
receipt of the following:
(a) Certified audit and accountant's
certificate dated ______________.
(b) Disclosure of financial and/oroperational
problems since the last certified audit which required
reporting pursuant to SEC Rule 17a-11. (If no such
reporting was required, state "none")
____________________________________________________
__________________________________________________________
________
(c) Balance sheet and statement of ownership
equity dated _____________.
(d) Most recent computation of net capital and
aggregate indebtedness or aggregate debit items dated
_________________, reflecting a net capital of
$________________ and a ratio of _______________.
(e) Debt/equity ratio as of ______________ of
________________.
(f) Other disclosures:
__________________________
Dated: March 12, 1999
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ L.S.
(Lender)
Executive Vice President
CERTIFICATE OF SECRETARY
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the duly appointed, qualified
and acting Secretary of SunAmerica Inc., a Delaware
corporation (the "Corporation"), do hereby certify that
the following is a atrue and correct copy of the resolutions
duly adoopted by the Executive Committee of the Board of
Directors of the Corporation, effective March 10, 1999, and
that such resolutions are in full force and effect as of the
date hereof:
WHEREAS, this Corporation, from time to time, reviews
the net capital infusion needs of its wholly-owned
subsidiaries which are broker-dealers registered with the
Securities and Exchange Commission and members of the
National Association of Securities Dealers, Inc., including
SunAmerica Capital Services, Inc., Advantage Capital
Corporation, SunAmerica Securities, Inc. and Royal Alliance
Associates, Inc., and in conjunction with such review, has
provided subordinated loans to such subsidiaries pursuant to
Subordinated Loan Agreements for Equity Capital;
WHEREAS, it is in the best interests of this
Corporation to provide blanket authorization for such
subordinated loan transactions;
NOW, THEREFORE, BE IT RESOLVED that the Chairman, any
Vice Chairman, any Executive Vice President, or the
Treasurer (the "Designated Officers"), acting alone, be, and
each hereby is authorized to effect subordinated loans to
the wholly-owned broker-dealer subsidiaries of the
Corporation, in an aggregate principal amount not to exceed
Fifty Million Dollars ($50,000,000), and to make, execute
and deliver such loan agreements and other documents
evidencing such loans, including any Subordinated Loan
Agreement for Equity Capital, as deemed necessary or
appropriate;
RESOLVED FURTHER that each of the Designated Officers
are hereby authorized to make such changes in the terms and
conditions of such Subordinated Loan Agreements as may be
necessary to conform to the requirements of Title 17 CFR
Section 240.15c 3-1d and the rules of the National Association of
Securities Dealers; and
RESOLVED FURTHER that the Executive Committee hereby
ratifies any and all action that may have been taken by the
officers of this Corporation in connection with the
foregoing resolutions and authorizes the officers of this
Corporation to take any and all such further actions as may
be deemed appropriate to reflect these resolutions and to
carry out their tenor, effect and intent.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate and affixed the seal of this corporation this
12th day of March, 1999.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
[SEAL]