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EXHIBIT 10(s)
[364-day]
SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of December 12,
1994, among SUNAMERICA INC., a Maryland corporation ("SunAmerica"), and
SUNAMERICA FINANCIAL, INC., a Georgia corporation (together with SunAmerica,
the "Borrowers"), the banks listed on the signature pages hereof (the
"Lenders") and CITIBANK, N.A., as agent (the "Agent") for the Lenders.
WHEREAS, the parties hereto (other than NationsBank of
Georgia, N.A. ("NationsBank") are parties to the Credit Agreement, dated as of
February 1, 1993, originally providing for a $60,000,000 revolving credit
facility, as amended by a First Amendment to Credit Agreement dated as of
January 30, 1994 (as so amended, the "Credit Agreement"; capitalized terms used
herein without definition shall have the meanings specified in the Credit
Agreement); and
WHEREAS, the parties hereto desire to amend the Credit
Agreement as described below;
NOW, THEREFORE, the parties hereto agree as follows, effective
on the Second Amendment Effective Date (as hereinafter defined):
1. AMENDMENTS. The Credit Agreement is amended as follows:
a. Section 1.01.
(i) The definitions of "Commitment", "Level I Status" and
"Termination Date" contained in Section 1.01 of the Credit Agreement are
amended and restated in their entirety to read as follows:
"Commitment" means the amount set forth opposite each Lender's
name on Schedule 1 hereto (or in an Assignment and Acceptance entered
into by it) as its Commitment, as such amount may be adjusted from
time to time to give effect to Money Market Reductions pursuant to
Section 2.01 or reduced from time to time pursuant to Section 2.10.
"Level I Status" means that, at 8:30 a.m. New York City time
at any date of determination, SunAmerica's senior unsecured long term
debt is rated "A+" or better by Standard & Poor's and "A3" or better
by Xxxxx'x.
"Termination Date" means December 14, 1995 or any extension
thereof pursuant to Section 2.09 or the earlier date of termination in
whole of the Commitments pursuant to Sections 2.10 or 9.01.
(ii) The definition of "Other Agreement" contained in
Section 1.01 of the Credit Agreement is amended by inserting immediately before
the word "providing" the word "originally" and by inserting immediately after
the words "dated as of January 30, 1994," the words "and by the Second
Amendment to Credit Agreement, dated as of December 12, 1994, providing, as so
amended, for a $150,000,000 revolving credit facility, and as the same may be
further amended from time to time".
(b) Section 2.07.
(i) Section 2.07(b) of the Credit Agreement is amended by
replacing the second paragraph thereof with the following:
"CD Margin" means (i) 0.37% for any day on which
Level I Status exists, (ii) 0.40% for any day on which Level II Status
exists, (iii) 0.4625% for any day on which Level III Status exists and
(iv) 0.625% for any day on which Level IV Status exists.
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(ii) Section 2.07(c) of the Credit Agreement is amended by
replacing the second paragraph of subsection (i) thereof with the following:
"Eurodollar Margin" means (1) 0.245% for any day on
which Level I Status exists, (2) 0.275% for any day on which Level II
Status exists, (3) 0.3375% for any day on which Level III Status
exists and (4) 0.50% for any day on which Level IV Status exists.
(c) Section 2.08.
(i) Clause (a) of Section 2.08 is deleted (and shall be
left blank).
(ii) Section 2.08(b) of the Credit Agreement is amended by
replacing the first sentence thereof with the following: "The Borrowers shall
pay to the Agent for the account of the Lenders ratably a facility fee at the
following rates per annum: (i) 0.09% for any day on which Level I Status
exists, (ii) 0.10% for any day on which Level II Status exists, (iii) 0.15% for
any day on which Level III Status exists and (iv) 0.20% for any day on which
Level IV Status exists."
(iii) Section 2.08(c) of the Credit Agreement is amended by
deleting the words "at the rate of 0.0625% per annum" and by adding the
following new sentence at the end thereof:
"Such additional utilization fee shall be at the following
rates per annum: (i) 0.05% for any day on which Level I
Status or Level II Status exists, (ii) 0.0625% for any day on
which Level III Status exists, and (iii) 0.125% for any day on
which Level IV Status exists."
(d) Section 2.09. Section 2.09(c) of the Credit
Agreement is amended and restated in its entirety to read as follows:
"(c) The Agent will promptly, and in any event within 5
Domestic Business Days of the receipt of each Notice of Extension,
provide the Lenders with a copy of each such Notice of Extension.
Each Lender will in its sole discretion determine whether to consent
to such Notice of Extension and will use its best efforts to respond
to such Notice of Extension on a date not earlier than 30 days prior
to the Existing Termination Date but in any event not later than 20
days prior to the Existing Termination Date. Each consent of a Lender
to a Notice of Extension shall be in writing and shall become
effective and binding only if each other Lender (or an assignee as
contemplated by this subsection (c)) has consented in writing to such
Notice of Extension and such Notice of Extension has become effective
in accordance with this Section 2.09(c). The Agent shall notify the
Borrowers promptly after the date 20 days prior to the Existing
Termination Date as to which Lenders have consented to the extension.
If less than all Lenders consent to such extension within such period,
the Borrowers may require that the Lenders that do not consent to such
extension assign, and such Lenders shall assign, their Commitments in
their entirety pursuant to Section 11.07, no later than 15 days prior
to the Existing Termination Date, to one or more Eligible Assignees
(which may be one or more of the Lenders), if any, identified by the
Borrowers pursuant to Section 3.05 who will consent to such extension.
The Agent shall notify the Borrowers and the Lenders at least 15 days
prior to the Existing Termination Date of the consent or failure to
consent of the Lenders to the Notice of Extension. A Notice of
Extension shall become effective, and the Existing Termination Date
shall become the extended Existing Termination Date specified in such
Notice of Extension, upon the receipt by the Agent of written consents
signed by each of the Lenders to such Notice of Extension."
(e) Section 5.06.
(i) Section 5.06(a) of the Credit Agreement is amended (A) by
replacing the phrase ", 1991 and 1992" in subsection (i) thereof with the
phrase ", 1991, 1992 and 1993", and (B) inserting at the end of subsection (ii)
thereof the following:
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"As of September 30, 1994, the Risk-Based Capital
Ratio of Anchor and Sun Life were, respectively, 307%
and 210%, and as of the Second Amendment Effective
Date as defined in the Second Amendment to Credit
Agreement dated as of December 12, 1994 there has
been no material reduction in the Risk-Based Capital
Ratio of Anchor or Sun Life."
(ii) Subsection (ii) of Section 5.06(b) of the Credit
Agreement is amended and restated in its entirety to read as follows:
"(ii) The projected financial statements of
SunAmerica and its Subsidiaries, including the cash flow
projections of the Borrowers, which are set forth in the
Information Memorandum, dated October 1992, prepared for use
in connection with this revolving credit facility (the
"Information Memorandum"), and the projected financial
statements of SunAmerica and its Subsidiaries for the fiscal
year ending September 30, 1995 set forth in the materials
titled 'SunAmerica Inc. Bank Meeting, dated November 9, 1994'
prepared for use in connection with the Second Amendment to
Credit Agreement dated as of December 12, 1994 (the "Bank
Presentation Materials"), are based on good faith estimates
and assumptions made by the management of SunAmerica, it being
recognized, however, that projections are subject to
significant uncertainties and contingencies, many of which are
beyond the Borrowers' control, and that the actual results
during the period or periods covered by such projections may
differ from the projected results and that the differences may
be material. Notwithstanding the foregoing, as of the
Effective Date, in the case of the projections contained in
the Information Memorandum, and as of the Second Amendment
Effective Date as defined in said Second Amendment to Credit
Agreement, in the case of the projections contained in the
Bank Presentation Materials, management of SunAmerica believes
that such projections were, taken as a whole, reasonable and
attainable."
(f) Section 8.03. Section 8.03 of the Credit Agreement
is amended by changing the figure "100%" to read "125%".
(g) Schedule 1. Schedule 1 to the Credit Agreement is
amended to read in its entirety as set forth in Exhibit A hereto.
(h) Exhibits B, C, D, E, F and H. Exhibits B, C, D, E, F
and H to the Credit Agreement are each amended by (i) replacing the word
"$160,000,000" in the first paragraph of each such exhibit with the word
"$100,000,000", and (ii) inserting before the words "the `Credit Agreement'" in
the first parenthetical of the first paragraph of each such exhibit the
following: "as amended by the First Amendment to Credit Agreement, dated as of
January 30, 1994, and by the Second Amendment to Credit Agreement, dated as of
December 12, 1994, and as the same may be further amended from time to time,".
(i) Additional Lender. NationsBank is hereby added
(effective on the Second Amendment Effective Date) as a party to the Credit
Agreement and shall be deemed to be a Lender for all purposes hereof having the
Commitment stated on Schedule 1 to the Credit Agreement as amended hereby and
having all the rights and obligations of a Lender thereunder as if it were a
direct signatory to the Credit Agreement; provided, that NationsBank shall be
deemed to be a Lender for purposes of Section 10.05 of the Credit Agreement
only in respect of events occurring after the Second Amendment Effective Date.
2. CONDITIONS PRECEDENT TO EFFECTIVENESS. This Second
Amendment to Credit Agreement shall become effective on December 15, 1994 (the
"Second Amendment Effective Date"), provided, that as of such date this Second
Amendment to Credit Agreement has been executed and delivered by each of the
parties hereto and the following conditions precedent shall have been satisfied
(or waived in accordance with Section 11.01 of the Credit Agreement):
(a) receipt by the Agent of counterparts hereof signed by
each of the parties hereto (or, in the case of any Lender as to which an
executed counterpart shall not have been received, receipt by the Agent in
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form satisfactory to it of telegraphic, telex or other written confirmation
from such Lender of execution of a counterpart hereof by such Lender);
(b) receipt by the Agent of an opinion of Xxxxx X.
Xxxxxx, the Vice President, General Counsel - Corporate Affairs and Secretary
of SunAmerica, dated the Second Amendment Effective Date, covering such matters
relating to the transactions contemplated hereby as the Agent may reasonably
request;
(c) receipt by the Agent of a certificate of a
Responsible Officer of each Borrower, dated as of the Second Amendment
Effective Date, to the effect that (i) the representations and warranties of
such Borrower contained in Article V of the Credit Agreement (as amended by
this Second Amendment to Credit Agreement) are true and correct in all material
respects on the date of such certificate with the same effect as though made on
and as of the date of such certificate except to the extent they expressly
relate to a prior date and (ii) no Default exists or results from the execution
and delivery by such Borrower of this Second Amendment to Credit Agreement; and
(d) receipt by the Agent of all documents reasonably
requested by the Agent relating to the existence and good standing of the
Borrowers, the corporate authority for and validity of the Credit Agreement as
amended by this Second Amendment to Credit Agreement, and any other matters
relevant hereto, all in form and substance satisfactory to the Agent and the
Agent's counsel.
3. REPRESENTATIONS AND WARRANTIES. Each of the
Borrowers jointly and severally represents and warrants to the Agent and each
of the Lenders that: (i) the representations and warranties of the Borrowers
contained in Article V of the Credit Agreement (as amended by this Second
Amendment to Credit Agreement) are true and correct in all material respects on
the date hereof with the same effect as though made on and as of the date
hereof except to the extent they expressly relate to a prior date and (ii) no
Default exists or results from the execution and delivery by the Borrowers of
this Second Amendment to Credit Agreement.
4. FULL FORCE AND EFFECT. All of the terms and
provisions of the Credit Agreement, as amended hereby, are and shall continue
to be in full force and effect and the Agent and the Lenders shall be entitled
to all the benefits thereof.
5. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
6. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to Credit Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above written.
SUNAMERICA INC.
By: /s/ Xxxxx X. Xxxxxxx
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Title: Senior Vice President
and Treasurer
SUNAMERICA FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Title: Authorized Agent
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CITIBANK, N.A.,
in its capacity as
Agent and Lender
By: /s/ Xxxxxx X. Xxxxxx, V.P.
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Name: Xxxxx X. Xxxxxx
Title: Attorney-in-Fact
Citibank, N.A.
Lenders
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BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, N.A.
By: /s/ R. Xxxxxxx Xxxxxxxx
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Name: R. Xxxxxxx Xxxxxxxx
Title: Vice President
CHEMICAL BANK
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
FIRST INTERSTATE BANK OF
CALIFORNIA
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: /s/ Kazutaka Kiyoto
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Name: Kazutaka Kiyoto
Title: Senior Vice President
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NATIONSBANK OF GEORGIA, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE NEW YORK AND CAYMAN
ISLANDS BRANCHES
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Associate
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[364-day]
EXHIBIT A
TO SECOND
AMENDMENT TO
CREDIT AGREEMENT
SCHEDULE 1 TO CREDIT AGREEMENT
Name of Lender Commitment
CITIBANK, N.A. $ 9,600,000
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION $ 9,600,000
THE BANK OF NEW YORK $ 9,600,000
THE CHASE MANHATTAN BANK, N.A. $ 9,600,000
CHEMICAL BANK $ 9,600,000
FIRST INTERSTATE BANK OF CALIFORNIA $ 9,600,000
THE FIRST NATIONAL BANK OF CHICAGO $ 9,600,000
THE INDUSTRIAL BANK OF JAPAN, LIMITED $ 9,600,000
NATIONSBANK OF GEORGIA, N.A. $ 9,600,000
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK $ 6,800,000
WESTDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK AND CAYMAN ISLANDS BRANCHES $ 6,800,000
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$100,000,000
