EXHIBIT 10(a)
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: May 14, 1998 NASD
RECEIVED: May 15, 1998
NASD Regulation, Inc.
District 10
NASD
SUBORDINATED LOAN AGREEMENT
FOR EQUITY CAPITAL
AGREEMENT DATED April 29, 1998 to be effective May
28, 1998 between SunAmerica, Inc. (the "Lender") and
SunAmerica Capital Services, Inc. (the "Broker-Dealer").
In consideration of the sum of $3,500,00 and subject
to the terms and conditions hereinafter set forth, the
Broker-Dealer promises to pay to the Lender or assigns on
June 27, 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 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.
* Interest to be paid quarterly from the effective date
of this Agreement.
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, 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 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 29th day of April, 1998.
SunAmerica Capital services, Inc.
(Name of Broker-Dealer)
By: /s/ Xxxxx Xxxxxx-Xxxxxx X.X.
(Authorized Person)
By: /s/ SunAmerica, Inc. L.S.
(Lender)
By: /s/ Xxxxx X. Xxxxxxx L.S.
Executive Vice President
FOR NASD USE ONLY
ACCEPTED BY: /s/ Xxxxxx X. XxXxxxxx
(Name)
Assistant Director
(Title)
EFFECTIVE DATE: 5/28/98
LOAN NUMBER: 10-E-SLA-10749
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: ultimate parent of the Broker-Dealer;
continuously monitors 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: April 29, 1998
/s/ Xxxxx X. Xxxxxxx L.S.
(Lender)
Executive Vice President
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
29th day of April, 1998.
/s/ Xxxxx X. Xxxxxx
XXXXX X. XXXXXX
(SEAL)
