NASD EXHIBIT 10(f)
SUBORDINATED LOAN AGREEMENT
FOR EQUITY CAPITAL
SL-5
AGREEMENT BETWEEN:
Lender SunAmerica Inc.
(Name)
1999 Avenue of the Stars, 38th Floor
(Street Address)
Los Angeles California 90067-
6002
(City) (State)
(Zip)
AND
Broker-Dealer SunAmerica Capital Services, Inc.
(Name)
000 Xxxxx Xxxxxx, 0xx Xxxxx
(Xxxxxx Address)
New York New York 10017
(City) (State)
(Zip)
NASD ID No.: 13158
Date Filed: August 30, 1996 NASD
NASD
SUBORDINATED LOAN AGREEMENT
FOR EQUITY CAPITAL
AGREEMENT dated August 22, 1996 to be effective
September 298 1996 between SunAmerica Inc. (the "Lender") and
SunAmerica Capital Services, Inc. (the "Broker-Dealer").
In consideration of the sum of $4,560,000 and subject to
the terms and conditions hereinafter set forth, the Broker-
Dealer promise to pay to the Lender or assigns on September
28, 1999 (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
9.0 percent 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 240.15c3-1d 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
provisions 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
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 only upon receipt of the
prior written approval of the NASD, but in no event may any
prepayment be mad before the expiation of one year from the
date this Agreement became effective. No prepayment shall be
made if, after given effect thereto (and to all payments of
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 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 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 120 percent of the minimum dollar
amount required by 17 CFR 240.15c3-1 including paragraph (f),
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.
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 (f), 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 (f) of 17 CFR 240.15c3-1, its
net capital would be less than 5 percent of aggregate debit
items computed in accordance with 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 purchase 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 (f), 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 form 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
any payments of Payment Obligations under satisfactory
subordination agreements which are scheduled to occur within
six months following such withdrawal, advances or loan, either
aggregate indebtedness of any of the consolidated entities
exceed 1000 percent of its net capital, or in the case of a
Broker-Dealer 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, 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 (f), 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-DEALER 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 Organization 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; and,
(c) Whenever the Broker-Dealer receives written notice of
acceleration of maturity pursuant to the provisions of this
Agreement, the Broker-Dealer shall promptly give written
notice thereof to the CFTC at the address above stated and/or
to 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
insistent with the requirements of 17 CFR 240.15c3-1 and
240.15c3-1d.
This 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, rules 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 Broker-Dealer 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 22nd day of August, 1996.
SunAmerica Capital Services,
Inc.
(Name of Broker-Dealer)
By: /s/ Xxxxx Xxxxxxxxx
L.S.
(Authorized Person)
SunAmerica Inc.
L.S.
(Lender)
By: /s/ Xxxxx X. Xxxxxxx
(Authorized Person)
. FOR NASD USE ONLY
ACCEPTED BY:
(Name)
(Title)
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 Appendix D 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 the ultimate parent company of broker-dealer,
and Lender continuously monitors the fiscal status and reports
of Broker-Dealer.
6. If not a partner or stockholder 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/or operational 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:
SunAmerica Inc.
Dated: August 22, 1996 /s/ XXXXX X. XXXXXXX L.S.
CERTIFICATE OF SECRETARY
I, Xxxxx X. Xxxxxx, Secretary of SunAmerica Inc., a Maryland
corporation (this "Corporation"), do hereby certify that the
Executive Committee of 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, and (3) the principal amount limits set
forth in the following resolutions are not exceeded by that
certain $4,560,000 Subordinated Loan Agreement for Equity
Capital dated August 22, 1996, and effective as of September
29, 1996 between this Corporation and SunAmerica Capital
Services, Inc.:
Blanket Authorization of Subordinated Loan Agreement 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
S240.15c 3-1d and the rules of the National Association of
Securities Dealers;
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 3rd
day of September, 1996.
/s/ Xxxxx X. Xxxxxx, Secretary
(SEAL)
