NASD EXHIBIT 10(h)
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: December 19, 1994
NASD
SUBORDINATED LOAN AGREEMENT
FOR EQUITY CAPITAL
AGREEMENT dated December 14, 1994 to be effective
January 14, 1995 between SunAmerica Inc. (the "Lender") and
SunAmerica Capital Services, Inc. (the "Broker-Dealer").
In consideration of the sum of $3,000,000.00 and
subject to the terms and conditions hereinafter set forth, the
Broker-Dealer promise to pay to the Lender or assigns on
January 13, 1998 (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 14th day of December, 1994.
SunAmerica Capital Services,
Inc.
(Name of Broker-Dealer)
By:
L.S. /s/ XXXXX XXXXXXXXX
(Authorized Person)
SunAmerica Inc.
L.S.
(Lender)
By:/s/ XXXXX X. XXXXXXX
(Authorized Person)
. FOR NASD USE ONLY
ACCEPTED BY: /s/ XXXX X. XXXXXX
(Name)
(Title)
EFFECTIVE DATE: January 14,
1995
LOAN NUMBER: 10-E-SLA-0140
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: Broker-Dealer is a fifth tier subsidiary of Lender
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.
/s/ XXXXX X. XXXXXXX
Dated: December 14, 1994 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, by unanimous written consent dated December 14,
1994, adopted the following resolutions and that said
resolutions have not been modified, amended, repealed or
rescinded and are in full force and effect:
Authorization of Subordinated Loan Agreement for Equity
Capital with SunAmerica Capital Services, Inc.
BE IT RESOLVED, that the Executive Committee of this
Corporation after review of the net capital infusion needs of
SunAmerica Capital Services, Inc. hereby authorizes a $3
million subordinated loan to said subsidiary in conformance
with the Subordinated Loan Agreement for Equity Capital dated
as of December 14, 1994, to be effective on January 14, 1995
("Subordinated Loan Agreement"); and
RESOLVED FURTHER that Xxxxx X. Xxxxxxx, Senior Vice
President of this Corporation, is hereby authorized to execute
said Subordinated Loan Agreement on behalf of this
Corporation, and further, to make such changes in the terms
and conditions of such Subordinated Loan Agreement 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 actions that may have previously been
taken by the officers of this Corporation in connection with
the foregoing resolution and authorized the officers of this
Corporation to take any and all such further actions as may be
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 15th
day of December 1994.
/s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx, Secretary
(SEAL)
SUNAMERICA CAPITAL SERVICES, INC.
FOCUS REPORT AS OF NOVEMBER 30, 1994
ALLOWABLE NON-ALLOWABLE TOTAL
PAGE 1
CASH 16,004,374.69 16,004,374.69
PROPERTY,
FURNITURE &
EQUIP. 0.00 0.00
INVESTS&REC-
INTERCOMPANY 0.00 0.00 0.00
OTHER ASSETS 1,624,212.09 38,644,682.00 40,268,894.09
TOTAL ASSETS 17,628,586.78 38,644,682.00 56,273,268.78
RECONCILIATION
TOTAL ASSETS PER ABOVE 56,273,268.78
TOTAL ASSETS PER G/L 56,273,268.78
DIFFERENCE 0.00
ADJUSTMENTS 0.00
ADJUSTED DIFFERENCE 0.00
PAGE 2 AGGREGATE NON-AGGREGATE
INDEBTNESS INDEBTNESS TOTAL
TOTAL LIABILITIES (5,529,046.82)(12,497,613.00) (18,026,659.82)
OWNERSHIP EQUITY
COMMON STOCK (25,000.00)
ADDITIONAL PAID IN CAPITAL (19,482,783.70)
RETAINED EARNINGS (497,119.26)
SUBORDINATED DEBT (18,241,706.00)
TOTAL (38,246,608.96)
TOTAL LIABILITIES & S/H EQUITY (56,273,268.78)
RECONCILIATION:
TOTAL PER ABOVE (56,273,268.78)
TOTAL PER G/L (56,273,268.78)
TOTAL 0.00
ADJUSTMENTS 0.00
DIFFERENCE 0.00
PAGE 3
LINE 1 TOTAL OWNERSHIP EQUITY 20,004,902.96
LINE 3 SAME AS ABOVE 20,004,902.96
LINE 4A SUBORDINATED LIABILITY 18,241,706.00
LINE 4B DEFERRED TAX LIABILITY 12,497,613.00
LINE 5 TOTAL CAPITAL AND ALLOWABLE SUBLOANS 50,744,221.96
LINE 6A TOTAL NON-ALLOW. ASSETS (38,644,682.00)
LINE 6D OTHER DEDUCTIONS - FIDELITY BOND 0.00
LINE 8 NET CAPITAL BEFORE ... 12,099,539.96
LINE 10 SAME AS ABOVE 12,099,539.96
HAIRCUT 425,768.78
PAGE 4 11,673,771.18
LINE 11 MINIMUM NET CAPITAL REQ. 6.667 PERCENT
OF LINE 19 368,603.12
LINE 12 MINIMUM DOLLAR NET CAPITAL 25,000.00
LINE 13 NET CAPITAL REQ. (GREATER OF LINE 11 OR 12) 368,603.12
LINE 14 EXCESS NET CAPITAL (LINE 10 LESS 13) 11,305,168.06
LINE 15 EXCESS NET CAPITAL AT 1000 PERCENT
(LINE 10-10 PERCENT OF LINE 19) 11,120,866.50
LINE 16 TOTAL LIABILITIES 18,026,659.82
LINE 19 TOTAL AGGREGATE INDEBTEDNESS 5,529,046.82
LINE 20 PERCENT OF AGGREGATE INDEBT. TO
NET CAPITAL 0.47
LINE 21 N/A
