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EXHIBIT 10(g)
NASD
SUBORDINATED LOAN AGREEMENT
FOR EQUITY CAPITAL
SL-5
AGREEMENT BETWEEN:
Lender SunAmerica, Inc.
(Name)
0 XxxXxxxxxx Xxxxxx
(Xxxxxx Xxxxxxx)
Xxx Xxxxxxx Xxxxxxxxxx 00000-0000
(City) (State) (Zip)
AND
Borrower Capital Services Inc.
(Name)
000 Xxxxx Xxxxxx
(Xxxxxx Address)
New York New York 10017
(City) (State) (Zip)
NASD IDNO: 13158
Date Filed: September 2, 1998 NASD
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NASD
SUBORDINATED LOAN AGREEMENT
FOR EQUITY CAPITAL
AGREEMENT DATED August 25,1998 to be effective September 30, 1998
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 October 30, 2001 (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 ofthe 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 h
erein) 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.
* Interest to be paid quarterly from the effective date of this Agreement.
I. PERMISSIVE PREPAYMENTS
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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.
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
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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.
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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.
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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.
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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 25th
day of August, 1998.
SunAmerica Capital services, Inc.
(Name of Broker-Dealer)
By: /s/ Xxxxx Xxxxxx-Xxxxxx X.X.
(Authorized Person)
Chief Financial Officer
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By: /s/ SunAmerica, Inc. L.S.
(Lender)
By: /s/ Xxxxx X. Xxxxxxx L.S.
Executive Vice President
FOR NASD USE ONLY
ACCEPTED BY:
(Name)
EFFECTIVE DATE:
LOAN NUMBER:
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SUBORDINATED LOAN AGREEMENT
LENDER'S 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: ultimate
parent of the Broker-Dealer; continuously monitors fiscal status, 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: August 25, 1998
SunAmerica Inc.
/s/ Xxxxx X. Xxxxxxx L.S.
(Lender)
Executive Vice President
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CERTIFICATE OF SECRETARY
I, Xxxxx X. Xxxxxx, Secretary of SunAmerica Inc., a Maryland corporation
(this "Corporation), do hereby certify that 91) the Executive Committee of
the Board of Directors of this corporation as of August 22, 1996, adopted the
following resolutions, (2) that such resolutions have not been amended or
rescinded from the date of their resolution and are in full force and effect
as of the date hereof, (3) the principal amount limits set forth in the
following resolutions are not exceeded by that certain $3,500,000
Subordinated Loan Agreement for Equity Capital dated April 29, 1998, and
effective May 28,1998 between this Corporation and SunAmerica Capital
Services, Inc.
Blanket Authorization of Subordinated Loan Agreements for Equity Capital
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 25th day of August, 1998.
/s/ Xxxxx X. Xxxxxx
XXXXX X. XXXXXX
(SEAL)
