EXHIBIT 10.43
REVOLVING CREDIT
AGREEMENT
Dated as of July 21, 1999
Among
ALLIANCE CAPITAL MANAGEMENT L. P.,
as Borrower
FLEET NATIONAL BANK,
as Administrative Agent,
THE FIRST NATIONAL BANK OF CHICAGO,
as Syndication Agent,
BANQUE NATIONALE DE PARIS,
as Documentation Agent
and
THE BANKS WHOSE NAMES APPEAR
ON THE SIGNATURE PAGES HEREOF
TABLE OF CONTENTS
Page
----
1.0. DEFINITIONS AND RULES OF INTERPRETATION. 1
1.1 Definitions..............................................................1
1.2 Rules of Interpretation.................................................15
2.0. THE REVOLVING CREDIT FACILITY. 16
2.1 Commitment to Lend......................................................16
2.2 Facility Fee............................................................17
2.3 Utilization Fee.........................................................17
2.4 Reduction of Total Commitment...........................................18
2.5 The Notes...............................................................18
2.6 Interest on Revolving Credit Loans......................................19
2.6.1 Interest Rates...............................................19
2.6.2. Interest Payment Dates.......................................19
2.7 Requests for Revolving Credit Loans.....................................19
2.8 Conversion Options......................................................19
2.8.1 Conversion to Eurodollar Rate Loan...........................19
2.8.2 Continuation of Type of Revolving Credit Loan................20
2.8.3 Eurodollar Rate Loans........................................20
2.8.4 Conversion Requests..........................................21
2.9 Funds for Revolving Credit Loans........................................21
2.9.1 Funding Procedures...........................................21
2.9.2 Advances by Administrative Agent.............................21
2.10 Limit on Number of Eurodollar Rate Loans................................22
2.11 Competitive Bid Rate Loans..............................................22
2.11.1 Competitive Bid Rate Option..................................22
2.11.2 Competitive Bid Rate Quote Request...........................22
2.11.3 Invitation for Competitive Bid Request Quotes................23
2.11.4 Submission and Contents of Competitive Bid Rate Quotes.......23
2.11.5 Notice to the Borrower.......................................24
2.11.6 Acceptance and Notice by the Borrower........................25
2.11.7 Allocation by the Administrative Agent; Notice to Banks of
Acceptance of Offers...................................25
2.11.8 Funding of Competitive Bid Rate Loans........................26
2.11.9 Maturity of Competitive Bid Rate Loans; Prepayment...........26
2.11.10 Interest on Competitive Bid Rate Loans.......................27
2.11.11 Competitive Bid Rate Notes...................................27
3.0. REPAYMENT OF LOANS. 27
3.1 Maturity................................................................27
--------
3.2 Mandatory Repayments of Revolving Credit Loans..........................27
3.2.1 Loans in Excess of Commitment................................27
3.2.2 Change of Control............................................27
3.3 Optional Repayments of Revolving Credit Loans...........................29
4. 0 CERTAIN GENERAL PROVISIONS 29
4.1 Application of Payments.................................................29
4.2 Funds for Payments......................................................29
4.2.1 Payments to Administrative Agent.............................29
4.2.2 No Offset, Etc...............................................30
4.2.3 Fees Non-Refundable..........................................30
4.3 Computations............................................................30
4.4 Inability to Determine Eurodollar Rate..................................31
4.5 Illegality..............................................................31
4.6 Additional Costs, Etc...................................................32
4.7 Capital Adequacy........................................................33
4.8 Certificate.............................................................34
4.9 Indemnity...............................................................34
4.10 Interest After Default..................................................35
5.0. REPRESENTATIONS AND WARRANTIES. 35
5.1 Corporate Authority.....................................................35
5.1.1 Incorporation; Good Standing.................................35
5.1.2 Authorization................................................35
5.1.3 Enforceability...............................................36
5.1.4 Equity Securities............................................36
5.2 Governmental Approvals..................................................36
5.3 Liens; Leases...........................................................36
5.4 Financial Statements....................................................36
5.5 No Material Changes, Etc................................................37
5.6 Permits.................................................................37
5.7 Litigation..............................................................37
5.8 Material Contracts......................................................38
5.9 Compliance with Other Instruments, Laws, Etc............................38
5.10 Tax Status..............................................................38
5.11 No Event of Default.....................................................38
5.12 Holding Company and Investment Company Acts.............................38
5.13 Insurance...............................................................39
5.14 Certain Transactions....................................................39
5.15 Employee Benefit Plans..................................................39
5.16 Regulations U and X.....................................................40
5.17 Environmental Compliance................................................40
5.18 Subsidiaries, Etc.......................................................41
5.19 Funded Debt.............................................................42
5.20 General.................................................................42
6.0 AFFIRMATIVE COVENANTS OF THE BORROWER. 42
6.1 Punctual Payment........................................................42
6.2 Maintenance of Office...................................................42
6.3 Records and Accounts....................................................42
6.4 Financial Statements, Certificates, and Information.....................42
6.5 Notices.................................................................45
6.5.1 Defaults.....................................................45
6.5.2 Environmental Events.........................................45
6.5.3 Notice of Proceedings and Judgments..........................45
6.5.4 Notice of Change of Control..................................46
6.6 Existence; Business; Properties.........................................46
6.6.1 Legal Existence..............................................46
6.6.2 Conduct of Business..........................................47
6.6.3 Maintenance of Properties....................................47
6.6.4 Status Under Securities Laws.................................47
6.7 Insurance...............................................................47
6.8 Taxes...................................................................47
6.9 Inspection of Properties and Books, Etc.................................48
6.9.1 General......................................................48
6.9.2 Communication with Accountants...............................48
6.10 Compliance with Government Mandates, Contracts, and Permits.............48
6.11 Use of Proceeds.........................................................49
6.12 Restricted Subsidiaries.................................................49
6.13 Certain Changes in Accounting Principles................................49
7.0 CERTAIN NEGATIVE COVENANTS OF THE BORROWER. 50
7.1 Disposition of Assets...................................................50
7.2 Mergers and Reorganizations.............................................51
7.3 Acquisitions............................................................55
7.4 Restrictions on Liens...................................................56
7.5 Guaranties..............................................................57
7.6 Restrictions on Investments.............................................58
7.7 Restrictions on Funded Debt.............................................59
7.8 Distributions...........................................................59
7.9 Transactions with Affiliates............................................60
7.10 Fiscal Year.............................................................60
7.11 Compliance with Environmental Laws......................................60
7.12 Employee Benefit Plans..................................................60
7.13 Amendments to Certain Documents.........................................61
8.0 FINANCIAL COVENANTS OF THE BORROWER. 61
8.1 Ratio of Consolidated Adjusted Funded Debt to Consolidated
Adjusted Cash Flow....................................................61
8.2 Minimum Net Worth.......................................................62
8.3 Miscellaneous...........................................................62
9.0 CLOSING CONDITIONS. 63
9.1 Financial Statements and Material Changes...............................63
9.2 Loan Documents..........................................................63
9.3 Certified Copies of Charter Documents...................................63
9.4 Partnership and Corporate Action........................................63
9.5 Consents................................................................64
9.6 Opinions of Counsel.....................................................64
9.7 Proceedings.............................................................64
9.8 Incumbency Certificate..................................................64
9.9 Fees....................................................................64
9.10 Representations and Warranties True; No Defaults........................64
9.11 Year 2000 Letter........................................................65
10.0 CONDITIONS TO ALL BORROWINGS. 65
10.1 No Default..............................................................65
10.2 Representations True....................................................65
10.3 Loan Request............................................................65
10.4 Payment of Fees.........................................................65
10.5 No Legal Impediment.....................................................66
11.0 EVENTS OF DEFAULT; ACCELERATION; ETC. 66
11.1 Events of Default and Acceleration......................................66
11.2 Termination of Commitments..............................................69
11.3 Remedies................................................................69
11.4 Application of Monies...................................................70
12.0 SETOFF. 70
13.0 THE ADMINISTRATIVE AGENT. 71
13.1 Authorization...........................................................71
13.2 Employees and Agents....................................................71
13.3 No Liability............................................................72
13.4 No Representations......................................................72
13.5 Payments................................................................72
13.5.1 Payments to Administrative Agent.............................72
13.5.2 Distribution by Administrative Agent.........................73
13.5.3 Delinquent Banks.............................................73
13.6 Holders of Notes........................................................73
13.7 Indemnity...............................................................74
13.8 Administrative Agent, Syndication Agent and Documentation Agent
as Banks..............................................................74
13.9 Resignation.............................................................74
13.10 Notification of Defaults and Events of Default..........................75
13.11 Notification of Certain Events..........................................75
13.12 Duties in the Case of Enforcement.......................................75
13.13 Syndication Agent and Documentation Agent...............................75
14. 0 EXPENSES. 76
15.0 INDEMNIFICATION. 76
16. 0 SURVIVAL OF COVENANTS, ETC. 77
17.0 ASSIGNMENT AND PARTICIPATION. 78
17.1 Conditions to Assignment by Banks.......................................78
17.2 Certain Representations and Warranties; Limitations; Covenants..........78
17.3 Register................................................................79
17.4 New Notes...............................................................79
17.5 Participations..........................................................80
17.6 Disclosure..............................................................80
17.7 Assignee or Participant Affiliated with the Borrower....................80
17.8 Miscellaneous Assignment Provisions.....................................81
17.9 Assignment by Borrower..................................................81
18. NOTICES, ETC. 81
19. GOVERNING LAW. 82
20. HEADINGS. 82
21. COUNTERPARTS. 82
22. ENTIRE AGREEMENT, ETC. 83
23. WAIVER OF JURY TRIAL. 83
24. CONSENTS, AMENDMENTS, WAIVERS, ETCS
25. SEVERABILITY 84
Schedules
Schedule 1 - Banks and Commitments
Schedule 5.2 - Governmental Approvals
Schedule 5.18 - Subsidiaries
Schedule 5.19 - Funded Debt
Schedule 7.4 - Certain Permitted Liens
Schedule 7.6 - Certain Investments
Exhibits
Exhibit A-1 - Form of Assumption Agreement
Exhibit A-2 - Form of Assumption, Release and Consent Agreement
Exhibit B - Form of Note
Exhibit C - Form of Loan Request
Exhibit D - Form of Confirmation of Loan Request
Exhibit E - Form of Conversion Request
Exhibit F - Form of Confirmation of Conversion Request
Exhibit G - Form of Competitive Bid Rate Quote Request
Exhibit H - Form of Invitation for Competitive Bid Rate Quotes
Exhibit I - Form of Competitive Bid Rate Quote
Exhibit J - Form of Competitive Bid Rate Note
Exhibit K - Form of Compliance Certificate
Exhibit L - Form of Assignment and Acceptance
Exhibit M - Opinion Letter
vi
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT, dated as of July 21, 1999 (this
"Credit Agreement"), by and among ALLIANCE CAPITAL MANAGEMENT L.P., a Delaware
limited partnership (together with its permitted successors, the "Borrower"),
and the lending institutions listed on Schedule 1 (collectively, together with
their Eligible Assignees (as defined below), the "Banks"), and FLEET NATIONAL
BANK, as administrative agent for itself and the other Banks (as defined
below) (in such capacity, together with its successors in such capacity, the
"Administrative Agent"), THE FIRST NATIONAL BANK OF CHICAGO, as syndication
agent (in such capacity, the "Syndication Agent"), and BANQUE NATIONALE DE
PARIS, as documentation agent (in such capacity, the "Documentation Agent");
W I T N E S S E T
H:
WHEREAS, the Borrower desires to obtain from the Banks a revolving
credit facility as described in this Credit Agreement to refinance certain
outstanding obligations, for working capital and for other purposes as
provided below;
WHEREAS, the Banks are willing to provide such credit facility to the
Borrower upon the terms and conditions set forth in this Credit Agreement; and
WHEREAS, the Administrative Agent is willing to act as administrative
agent for itself and the other Banks in connection with such credit facility
as provided in this Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements set forth hereinbelow, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties, the parties hereto do hereby agree as follows:
1.0. DEFINITIONS AND RULES OF INTERPRETATION.
1.1 Definitions.
The following terms shall have the meanings set forth in this Section
1.1 or elsewhere in the provisions of this Credit Agreement referred to below:
Absolute Rate Loan. A Loan made by a Bank pursuant to an Absolute Rate
Auction.
Absolute Rate Auction. A solicitation of Competitive Bid Rate Quotes
setting forth Competitive Bid Absolute Rates pursuant to Section 2.11 hereof.
Acquisition. As defined in Section 7.3.
Administrative Agent. Fleet, acting as administrative agent for
itself and the other Banks.
Administrative Agent's Head Office. The Administrative Agent's head
office located at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, or at such
other location as the Administrative Agent may designate in a written notice
to the other parties hereto from time to time.
Affiliate. As defined under Rule 144 (a) under the Securities Act of
1933, as amended, but not including any Restricted Subsidiary or any
investment fund which is managed or advised by the Borrower.
Alliance Distributors. Alliance Fund Distributors, Inc., a Delaware
corporation.
Alternative Base Rate. For any day, the higher of (a) the Prime Rate
for such day and (b) one-half of one percent (0.50%) above the Federal Funds
Effective Rate for such day. Changes in the Alternative Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall become
effective automatically on the effective date of such change, without notice
to any party.
Alternative Base Rate Loans. Loans bearing interest calculated by
reference to the Alternative Base Rate.
Assignment and Acceptance. As defined in Section 17.1.
Assumption Agreement. An Assumption Agreement in the form of Exhibit
A-1 or Exhibit A-2 with appropriate completions and insertions and with such
non-substantive changes as may be required to reflect the specific nature of
the transaction giving rise to the execution and delivery of such Assumption
Agreement.
AXA Group. AXA, a societe anonyme organized under the laws of France,
and its Subsidiaries.
Banks. Fleet and the other lending institutions listed on Schedule
1 hereto and any other Person who becomes an assignee of any
rights and obligations of a Bank pursuant to Section 17.1.
Borrower. As defined in the preamble hereto.
Borrower Partnership Agreement. The Agreement of Limited Partnership
of the Borrower (As Amended and Restated), dated as of November 19, 1987,
among the General Partner, Xxxxx X. Xxxxxxx, as organizational limited
partner, and those other Persons who became partners of the Borrower as
provided therein, as such agreement has been amended and exists at the date of
this Credit Agreement and may be amended or modified from time to time in
compliance with the provisions of this Credit Agreement or replaced with the
charter documents of the Successor Entity (as defined in Section 7.2(d)) in
compliance with the provisions of Section 7.2(d) hereof.
2
Business. With respect to any Person, the assets, properties,
business, operations and condition (financial and otherwise) of
such Person.
Business Day. Any day on which banking institutions in Hartford,
Connecticut, Boston, Massachusetts, and New York, New York, are open for the
transaction of banking business and, in the case of Eurodollar Rate Loans or
Competitive Bid Eurodollar Loans, also a day which is a Eurodollar Business
Day.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as Permits, deferred
sales commissions and good will); provided that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with GAAP.
Capital Expenditures. Amounts paid or indebtedness incurred by the
Borrower or any of its Consolidated Subsidiaries in connection with the
purchase or lease by the Borrower or any of such Subsidiaries of Capital
Assets that would be required to be capitalized and shown on the balance sheet
of such Person in accordance with GAAP.
Capitalized Leases. Leases under which the Borrower or any of its
Consolidated Subsidiaries is the lessee or obligor, the discounted future
rental payment obligations under which are required to be capitalized on the
balance sheet of the lessee or obligor in accordance with GAAP.
CERCLA. As defined in Section 5.17.
Change of Control. Each and every (a) issue, sale, or other
disposition of Voting Equity Securities of the Borrower that results in any
Person or group of Persons acting in concert (other than any of The Equitable
Companies Incorporated and its Subsidiaries, and any member of the AXA Group)
beneficially owning or controlling, directly or indirectly, more than eighty
percent (80%) (by number of votes) of the Voting Equity Securities of the
Borrower or (b) issue, sale, or other disposition of Voting Equity Securities
of the General Partner which results in any Person or group of Persons acting
in concert (other than any of The Equitable Companies Incorporated and its
Subsidiaries, and any member of the AXA Group) beneficially owning or
controlling, directly or indirectly, more than fifty percent (50%) (by number
of votes) of the Voting Equity Securities of the General Partner.
Change of Control Date. Any date upon which a Change of Control
occurs.
Closing Date. The date, not later than July 30, 1999, on which
each of the conditions set forth in Section 9 is satisfied or waived.
Code. The Internal Revenue Code of 1986, as amended.
Commitment. With respect to each Bank, the amount set forth on
Schedule 1 hereto as the amount of such Bank's obligation to make Loans to the
Borrower, as the same may be
3
reduced from time to time; or if such Commitment is terminated pursuant to the
provisions hereof, zero.
Commitment Percentage. With respect to each Bank, such Bank's
percentage of the aggregate Commitments of all of the Banks.
Competitive Bid Absolute Rate. As defined in Section 2.11.4 hereof.
Competitive Bid Rate Activation Date. As defined in Section 2.11.2
hereof with respect to any proposed Competitive Bid Rate Loan.
Competitive Bid Rate Loan. A Competitive Bid Eurodollar Loan or an
Absolute Rate Loan.
Competitive Bid Eurodollar Loan. A Loan made by a Bank pursuant to a
Eurodollar Auction.
Competitive Bid Rate Margin. As defined in Section 2.11.4 hereof.
Competitive Bid Rate Maximum Amount. The discretionary option of the
Banks to loan, in their sole discretion, the sum, in the aggregate, of up to
$200,000,000 to the Borrower pursuant to the terms hereof.
Competitive Bid Rate Notes. Those certain promissory notes of the
Borrower, each substantially in the form of Exhibit J attached hereto, to the
order of each of the Banks evidencing the obligations of the Borrower to repay
the Competitive Bid Rate Loans made to it by such Bank hereunder, any other
promissory notes issued in connection with Competitive Bid Rate Loans, if any,
made or to be made hereunder, and any extension, renewals or amendments to, or
any replacements of, any of the foregoing.
Competitive Bid Rate Quote. An offer by any Bank to make one or more
Competitive Bid Rate Loans in accordance with Section 2.11.2 hereof.
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrower and
the Consolidated Subsidiaries, consolidated in accordance with GAAP.
Consolidated Adjusted Cash Flow. As defined in Section 8.1.
Consolidated Adjusted Funded Debt. As defined in Section 8.1.
Consolidated Net Income (or Loss). The consolidated net income (or
loss) of the Borrower, determined in accordance with GAAP, but excluding in
any event:
4
(a) to the extent provided by Section 7.8, any portion of the net
earnings of any Restricted Subsidiary that, by virtue of a restriction or Lien
binding on such Restricted Subsidiary under a Contract or Government Mandate,
is unavailable for payment of dividends to the Borrower or any other
Restricted Subsidiary;
(b) earnings resulting from any reappraisal, revaluation, or write-up
of assets; and
(c) any reversal of any contingency reserve, except to the extent
that such provision for such contingency reserve shall have been made from
income arising during the period subsequent to December 31, 1998 through the
end of the period for which Consolidated Net Income (or Loss) is then being
determined, taken as one accounting period.
Consolidated Net Worth. The excess of Consolidated Total Assets over
Consolidated Total Liabilities, less, to the extent otherwise includable in
the computations of Consolidated Net Worth, any subscriptions receivable with
respect to Equity Securities of the Borrower or its Consolidated Subsidiaries
(with such adjustments as may be appropriate so as not to double count
intercompany items).
Consolidated Subsidiaries. At any point in time, the Subsidiaries of
the Borrower that are consolidated with the Borrower for financial reporting
purposes with respect to the fiscal period of the Borrower in which such point
in time occurs.
Consolidated Total Assets. All assets of the Borrower determined on a
consolidated basis in accordance with GAAP.
Consolidated Total Liabilities. All liabilities of the Borrower
determined on a consolidated basis in accordance with GAAP.
Contracts. Contracts, agreements, mortgages, leases, bonds,
promissory notes, debentures, guaranties, Capitalized Leases, indentures,
pledges, powers of attorney, proxies, trusts, franchises, or other instruments
or obligations.
Conversion Request. A notice given by the Borrower to the
Administrative Agent of the Borrower's election to convert or continue
a Loan in accordance with Section 2.8.
Credit Agreement. This Revolving Credit Agreement, including the
Schedules and Exhibits hereto, as amended, restated, amended and restated,
supplemented, or otherwise modified and in effect from time to time.
Cursitor Acquisition Agreement. That certain Transaction Agreement
dated as of December 28, 1995 among the Borrower, the shareholders of record
of Cursitor Holdings Limited, Cursitor Holdings, L.P. and the additional
parties thereto, as amended as of January 1, 1997.
5
Cursitor Alliance. Cursitor Alliance, L.L.C., a Delaware limited
liability company.
Cursitor Member Agreement. That certain Cursitor Alliance LLC Amended
and Restated Limited Liability Company Agreement dated as of February 29,
1996, among the Borrower, Alliance Capital Management Corporation of Delaware
and Cursitor Holdings, L.P., which agreement shall be substantially in the
form of the draft attached as an exhibit to the Cursitor Acquisition
Agreement, as amended as of April 28, 1997.
Default. As defined in Section 11.
Distribution. With respect to any Entity, the declaration or payment
(without duplication) of any dividend or distribution on or in respect of any
Equity Securities of such Entity, other than dividends payable solely in
Equity Securities of such Entity that are not required to be classified as
liabilities on the balance sheet of such Entity under GAAP; the purchase,
redemption, or other retirement of any Equity Securities of such Entity,
directly or indirectly through a Subsidiary of such Entity or otherwise; or
the return of capital by such Entity to the holders of its Equity Securities
as such.
Documentation Agent. Banque Nationale de Paris, acting as
documentation agent.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Lending Office. Initially, the office of each Bank
designated as such in Schedule 1 hereto; thereafter, such other office of such
Bank, if any, located within the United States that will be making or
maintaining Alternative Base Rate Loans.
Drawdown Date. The date on which any Loan is made or is to be made,
and the date on which any Revolving Credit Loan is converted or continued in
accordance with Section 2.8.
EBITDA. The Consolidated Net Income (or Loss) for any period, plus
provision for any income taxes, interest (whether paid or accrued, but without
duplication of interest accrued for previous periods), depreciation, or
amortization for such period, in each case to the extent deducted in
determining such Consolidated Net Income (or Loss).
Eligible Assignee. Any of (a) a commercial bank or finance company
organized under the laws of the United States, any State thereof, or the
District of Columbia, and having total assets in excess of One Billion Dollars
($1,000,000,000); (b) a commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any such country, and
having total assets in excess of One Billion Dollars ($1,000,000,000),
provided that such bank is acting through a branch or agency located in the
country in which it is organized or another country which is also a member of
the OECD; and (c) the central bank of any country which is a member of the
OECD.
6
Employee Benefit Plan. Any employee benefit plan within the meaning
of section 3(2) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate, other than a Multiemployer Plan.
Entity. Any corporation, partnership, trust, unincorporated
association, joint venture, limited liability company, or other legal
or business entity.
Environmental Laws. As defined in Section 5.17(a).
Equity Securities. With respect to any Entity, all equity securities
of such Entity, including any (a) common or preferred stock, (b) limited or
general partnership interests, (c) limited liability company member interests,
(d) options, warrants, or other rights to purchase or acquire any equity
security, or (e) securities convertible into any equity security.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations and published
interpretations thereunder.
ERISA Affiliate. Any Person that is treated as a single employer
together with the Borrower under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a
Guaranteed Pension Plan within the meaning of section 4043 of ERISA and the
regulations promulgated thereunder as to which the requirement of notice has
not been waived.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar
Rate Loan or Competitive Bid Eurodollar Loan, the maximum rate (expressed as a
decimal) at which any Bank subject thereto would be required to maintain
reserves under Regulation D of the Board of Governors of the Federal Reserve
System (or any successor or similar regulations relating to such reserve
requirements) against "Eurocurrency Liabilities" (as that term is used in
Regulation D), if such liabilities were outstanding. The Eurocurrency Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in the Eurocurrency Reserve Rate.
Eurodollar Auction. A solicitation of Competitive Bid Rate Quotes
setting forth Competitive Bid Rate Margins based on the Eurodollar Rate
pursuant to Section 2.11 hereof.
Eurodollar Business Day. Any day on which commercial banks are open
for international business (including dealings in Dollar deposits) in London
or such other eurodollar interbank market as may be selected by the
Administrative Agent in its sole discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of each Bank
designated as such in Schedule 1 hereto; thereafter, such other office of such
Bank, if any, that shall be making or maintaining Eurodollar Rate Loans or, in
such Bank's discretion, Competitive Bid Eurodollar Loans.
7
Eurodollar Rate. For any Interest Period with respect to a Eurodollar
Rate Loan or Competitive Bid Eurodollar Loan, the rate of interest equal to
(a) the rate per annum (rounded upwards to the nearest 1/100th of one percent)
at which the Administrative Agent's Eurodollar Lending Office is offered
Dollar deposits at or about 11:00 a.m. (London time) on the date two (2)
Eurodollar Business Days prior to the beginning of such Interest Period in the
New York interbank eurodollar market for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of the Eurodollar Rate Loan or Competitive Bid
Eurodollar Loan to which such Interest Period applies, divided by (b) a number
equal to 1.00 minus the Eurocurrency Reserve Rate.
Eurodollar Rate Applicable Margin. An annual percentage rate
determined by the Administrative Agent, as of any date of determination, in
accordance with the Borrower's S&P Rating and Xxxxx'x Rating in effect as of
any date of determination as follows:
-------------------------------------------------------------------------------
Borrower's Eurodollar Rate
S&P Rating/Xxxxx'x Rating: at least Applicable Margin
-------------------------------------------------------------------------------
A-1+ and P-1 0.170%
-------------------------------------------------------------------------------
A-1 and P-1 0.210%
-------------------------------------------------------------------------------
A-1 and P-2 or A-2 and P-1 0.225%
-------------------------------------------------------------------------------
A-2 and P-2 0.350%
-------------------------------------------------------------------------------
Notwithstanding the foregoing, if (a) the Borrower's S&P Rating at
any time declines below A-2, or (b) the Borrower's Xxxxx'x Rating at any time
declines below P-2, or (c) the Borrower loses both its Xxxxx'x Rating and its
S&P Rating at any time, the Eurodollar Rate Applicable Margin shall be 0.550%,
in any such case subject, as applicable, to the provisions of Section 4.10
hereof. If, subsequent to any such rating decline or loss of such ratings, as
the case may be, the applicable rating is upgraded to a rating at least equal
to A-2 and P-2 (as applicable) or the Borrower is able to again obtain ratings
of at least A-2 and P-2, as the case may be, the above table shall, from and
after the date of such occurrence (until such time, if any, that the
Borrower's S&P Rating or Xxxxx'x Rating again declines below A-2 or P-2,
respectively, or the Borrower again loses such ratings), govern the Eurodollar
Rate Applicable Margin.
Eurodollar Rate Loans. Loans bearing interest calculated by reference
to the Eurodollar Rate.
Event of Default. As defined in Section 11.
Existing Credit Agreement. See Section 5.16.
Federal Funds Effective Rate. For any day, the rate per annum equal
to the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve
8
System arranged by federal funds brokers, as published for such day (or if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three funds brokers of
recognized standing selected by the Administrative Agent.
Fleet. Fleet National Bank, a national banking association.
Fully Effective. With respect to any Contract, that (a) such Contract
is the legal, valid, and binding obligation of the Borrower or its Subsidiary,
as the case may be, enforceable against such party according to its terms, and
(b) if such Contract exists on or before the date of this Credit Agreement,
such Contract shall remain in full force and effect notwithstanding the
execution and delivery of the Loan Documents and the consummation of the
transactions contemplated by the Loan Documents.
Funded Debt. With respect to the Borrower or any Consolidated
Subsidiary, (a) all indebtedness for money borrowed of such Person, (b) every
obligation of such Person in respect of Capitalized Leases, (c) all
reimbursement obligations of such Person with respect to letters of credit,
bankers' acceptances, or similar facilities issued for the account of such
Person, (d) Indebtedness that constitutes Funded Debt as provided in Section
7.1(d), and (e) all guarantees, endorsements, acceptances, and other
contingent obligations of such Person, whether direct or indirect, in respect
of indebtedness for borrowed money of others, including any obligation to
supply funds to or in any manner to invest in, directly or indirectly, the
debtor, to purchase indebtedness for borrowed money, or to assure the owner of
indebtedness for borrowed money against loss, through an agreement to purchase
goods, supplies, or services for the purpose of enabling the debtor to make
payment of the indebtedness held by such owner or otherwise, provided,
however, that each guaranty of Indebtedness of, keepwell obligation for, or
obligation to make funds available for, any Consolidated Subsidiary that acts
as general partner of one or more partnerships sponsored or established by the
Borrower or any of its Subsidiaries shall constitute Funded Debt from and
after such time as such guaranty, keepwell, or other obligation is no longer
contingent, whereupon such guaranty, keepwell, or other obligation will
constitute Funded Debt in an amount equal to the liability of such Person in
respect of such guaranty, keepwell, or other obligation to the extent such
guaranty, keepwell or other obligation is non-contingent.
General Partner. (a) Alliance Capital Management Corporation, a
Delaware corporation, in its capacity as general partner of the Borrower and
(b) any other Persons who satisfy the requirements for admitting general
partners without causing a Default or an Event of Default as set forth in
Section 11.1(n) and who are so admitted, each in its capacity as a general
partner of the Borrower, and their respective successors.
GAAP. Subject to Section 6.13, (a) when used in Section 8, whether
directly or indirectly through reference to a capitalized term used therein,
means (i) principles that are consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, in
effect for the fiscal year ended on December 31, 1998, and (ii) to
9
the extent consistent with such principles, the accounting practices of the
Borrower reflected in its consolidated financial statements for the year ended
on December 31, 1998, and (b) when used in general, other than as provided
above, means principles that are (i) consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, as in effect from time to time and (ii) consistently applied
with past financial statements of the Borrower adopting the same principles,
provided that in each case referred to in this definition of "GAAP" a
certified public accountant would, insofar as the use of such accounting
principles is pertinent, be in a position to deliver an unqualified opinion
(other than a qualification regarding changes in GAAP) as to financial
statements in which such principles have been properly applied.
Government Authority. The United States of America or any state,
district, territory, or possession thereof, any local government within the
United States of America or any of its territories and possessions, any
foreign government having appropriate jurisdiction or any province, territory,
or possession thereof, or any court, tribunal, administrative or regulatory
agency, taxing or revenue authority, central bank or banking regulatory
agency, commission, or body of any of the foregoing.
Government Mandate. With respect to (a) any Person, any statute, law,
rule, regulation, code, or ordinance duly adopted by any Government Authority,
any treaty or compact between two (2) or more Government Authorities, and any
judgment, order, decree, ruling, finding, determination, or injunction of any
Government Authority, in each such case that is, pursuant to appropriate
jurisdiction, legally binding on such Person, any of its Subsidiaries or any
of their respective properties, and (b) the Administrative Agent or any Bank,
in addition to subsection (a) hereof, any policy, guideline, directive, or
standard duly adopted by any Government Authority with respect to the
regulation of banks, monetary policy, lending, investments, or other financial
matters.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in
full or in part by the PBGC pursuant to Title IV of ERISA, other than a
-Multiemployer Plan.
Hazardous Substances. As defined in Section 5.17(b).
Indebtedness All obligations, contingent and otherwise, that in
accordance with GAAP should be classified upon the obligor's balance sheet as
liabilities, or to which reference should be made by footnotes thereto in
accordance with GAAP, including: (a) all debt and similar monetary
obligations, whether direct or indirect; (b) all liabilities secured by any
Lien existing on property owned or acquired subject thereto, whether or not
the liability secured thereby shall have been assumed; (c) all obligations in
respect of hedging contracts, including, without limitation, interest rate and
currency swaps, caps, collars and other financial derivative products; and (d)
all guarantees, endorsements, and other contingent obligations whether direct
or indirect in respect of indebtedness of others, including any obligation to
supply funds to or in any manner to invest in, directly or indirectly, the
debtor, to purchase indebtedness, or to assure the owner of
10
indebtedness against loss, through an agreement to purchase goods, supplies,
or services for the purpose of enabling the debtor to make payment of the
indebtedness held by such owner or otherwise, and the obligations to reimburse
the issuer in respect of any letters of credit.
Interest Payment Date. (a) As to any Alternative Base Rate Loan, the
last day of each calendar quarter during all or a portion of which such
Alternative Base Rate Loan is outstanding and the maturity of such Alternative
Base Rate Loan; and (b) as to any Eurodollar Rate Loan or Competitive Bid Rate
Loan, the last day of each Interest Period with respect to such Eurodollar
Rate Loan or Competitive Bid Rate Loan, the maturity of such Eurodollar Rate
Loan or Competitive Bid Rate Loan, and, if the Interest Period of such
Eurodollar Rate Loan is longer than three (3) months, the date that is three
(3) months from the first day of such Interest Period and the last day of each
successive three (3) month period during such Interest Period.
Interest Period. (a) With respect to any Eurodollar Rate Loan, (i)
initially, the period commencing on the Drawdown Date of such Loan and ending
on the last day of, as selected by the Borrower in a Loan Request, one (1),
two (2), three (3), or six (6) months or, if available in readily
ascertainable markets, nine (9), or twelve (12) months; and (ii) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Loan and ending on the last day of one of the periods set
forth above, as selected by the Borrower in a Conversion Request; and (b) with
respect to any Competitive Bid Rate Loan, the period commencing on the
Drawdown Date of such Loan and ending, as selected by the Borrower in a
Competitive Bid Rate Quote Request, on any day from and including seven (7)
days to and including one hundred eighty (180) days thereafter; provided that
all of the foregoing provisions relating to Interest Periods are subject to
the following:
(i) if any Interest Period for a Eurodollar Rate Loan or a
Competitive Bid Eurodollar Loan would otherwise end on a day that is not a
Eurodollar Business Day, that Interest Period shall be extended to the next
succeeding Eurodollar Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Eurodollar
Business Day;
(ii) if any Interest Period for a Eurodollar Rate Loan or a
Competitive Bid Eurodollar Loan that begins on the last Eurodollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Eurodollar Business Day of a calendar month; and
(iii) any Interest Period commencing prior to the Maturity
Date that would otherwise extend beyond the Maturity Date shall end on the
Maturity Date.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of Equity Securities or Funded
Debt of, or for loans, advances, or capital contributions, or in respect of
any guaranties (or other commitments as described under Indebtedness) of, any
Person. In determining the aggregate amount of Investments outstanding at any
particular time: (a) the amount of any Investment represented by a guaranty
shall be taken
11
at not less than the principal amount of the obligations guaranteed and still
outstanding and the amount of Indebtedness represented by a keepwell
obligation shall be taken at not less than the maximum amount of the keepwell
obligation, as the case may be; (b) there shall be deducted in respect of each
such Investment any amount received as a return of capital; (c) there shall
not be deducted in respect of any Investment any amounts received as earnings
on such Investment, whether as dividends, interest, or otherwise; and (d)
there shall not be added to or deducted from the aggregate amount of
Investments any increase or decrease in the value thereof. For purposes of
determining the amount of Investments by the Borrower and the Consolidated
Subsidiaries outstanding at any time, investments (defined as aforesaid) by an
Unrestricted Subsidiary in an Entity that is not a Subsidiary of the Borrower
shall not be counted as Investments hereunder to the extent that they do not
exceed the aggregate amount of Investments by the Borrower and the
Consolidated Subsidiaries in such Unrestricted Subsidiary.
Lien. Any lien, mortgage, security interest, pledge, charge,
beneficial or equitable interest or right, hypothecation, collateral
assignment, easement, or other encumbrance.
Loan Documents. This Credit Agreement, the Notes, any Assumption
Agreements and any instrument or document designated by the parties thereto
as a "Loan Document" for purposes hereof.
Loan Request. As defined in Section 2.7.
Loans. The Revolving Credit Loans and the Competitive Bid Rate Loans.
Majority Banks. The Banks whose aggregate Commitments constitute at
least sixty-six and two thirds percent (66-2/3%) of the Total Commitment.
Material Effect. A material adverse effect on (a) the ability of the
Borrower or any Other Obligor to enter into and to perform and observe its
Obligations under the Loan Documents, or (b) the Business of the Borrower and
its Consolidated Subsidiaries taken as a whole.
Material Subsidiary. Any Subsidiary of the Borrower, any Other
Obligor, or Alliance Distributors that, singly or together with any other such
Subsidiaries then subject to one or more of the conditions described in
Section 11.1(h), Section 11.1(i), or Section 11.1(m), either (a) at the date
of determination owns Significant Assets, or (b) has total assets as of the
date of determination equal to not less than five percent (5%) of the
Consolidated Total Assets of the Borrower as set forth in the consolidated
balance sheet of the Borrower included in the most recent available annual or
quarterly report of the Borrower.
Maturity Date. July 21, 2002.
Xxxxx'x Rating. With respect to any Entity which is the issuer or
obligor with respect to commercial paper, the rating assigned to such entity
by Xxxxx'x Investors Service, Inc. from time to time in effect.
12
Multiemployer Plan. Any multiemployer plan within the meaning of
ssection 3(37) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate.
1940 Act. The Investment Company Act of 1940, as amended.
Notes. The Notes of the Borrower to the Banks in respect of the
Borrower's Obligations under this Credit Agreement of even date herewith, and
including Competitive Bid Rate Notes, substantially in the form of Exhibit B
and Exhibit J, respectively, as amended, modified and renewed from time to
time.
Obligations. All indebtedness, obligations, and liabilities of any of
the Borrower, its Subsidiaries, and Other Obligors to any of the Banks and the
Administrative Agent, individually or collectively, existing on the date of
this Credit Agreement or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising or incurred under this Credit
Agreement or any of the other Loan Documents or in respect of any of the Loans
made, or any of the Notes, or other instruments at any time evidencing any
thereof.
Other Obligor. As defined in the Assumption Agreements.
PBGC. The Pension Benefit Guaranty Corporation created by section
4002 of ERISA and any successor entity or entities having similar
responsibilities.
Permits. Permits, licenses, franchises, patents, copyrights,
trademarks, trade names, approvals, clearances, and applications for or rights
in respect of the foregoing of any Government Authority.
Permitted Acquisitions. Acquisitions permitted under clauses (a)
through (f) of Section 7.3.
Permitted Liens. Liens permitted by Section 7.4.
Person. Any individual, Entity, or Government Authority.
Prime Rate. The variable per annum rate of interest so designated
from time to time by Fleet as its prime rate, which rate is a reference rate
and does not necessarily represent the lowest or best rate being charged by
Fleet to its customers.
Proceedings. Any (a) actions at law, (b) suits in equity, (c)
bankruptcy, insolvency, receivership, dissolution, or reorganization cases or
proceedings, (d) administrative or regulatory hearings or other proceedings,
(e) arbitration and mediation proceedings, (f) criminal prosecutions, (g)
judgment levies, foreclosure proceedings, pre-judgment security procedures, or
other enforcement actions, and (h) other litigation, actions, suits, and
proceedings conducted by, before, or on behalf of any Government Authority.
13
Real Estate. All real property at any time owned or leased (as lessee
or sublessee) by the Borrower or any of its Subsidiaries.
Record. The grid attached to a Note, or the continuation of such
grid, or any other similar record, including computer records, maintained by
any Bank with respect to any Loan referred to in such Note.
Reorganization and Reorganize. As defined in Section 7.2.
Restricted Subsidiary. Each (a) Subsidiary of the Borrower designated
as a "Restricted Subsidiary" on Schedule 5.18 (and by such designation the
Borrower represents and warrants to the Administrative Agent and the Banks
that such Subsidiary meets the qualifications of a Restricted Subsidiary as
specified in this definition), and (b) other Subsidiary of the Borrower that
the principal financial or accounting officer or treasurer of the Borrower may
after the date of this Credit Agreement certify to the Administrative Agent
and the Banks meets the qualifications of a Restricted Subsidiary as specified
in this definition (and at the time of any such certification the Borrower
shall provide the Administrative Agent and the Banks with a current list of
all Restricted Subsidiaries). The qualifications of a Restricted Subsidiary
are as follows: (a) at least fifty-one percent (51%) of the issued and
outstanding Equity Securities of a Restricted Subsidiary shall be owned of
record and beneficially by the Borrower or one or more other Restricted
Subsidiaries free of Liens other than Permitted Liens, and (b) no Restricted
Subsidiary shall be a general partner of any partnership, be a party to any
joint venture in respect of which liability is not limited to the amount of
such Restricted Subsidiary's capital contribution or other equity investment,
or have any contingent obligations established by Contract in respect of
Funded Debt that are not by their terms limited to a specific dollar amount;
provided, however, that, notwithstanding the foregoing, a Restricted
Subsidiary may be a general partner in a partnership which is wholly owned by
the Borrower or one or more other Restricted Subsidiaries.
Revolving Credit Loans. Revolving credit loans made or to be made by
the Banks to the Borrower pursuant to Section 2, but not including Competitive
Bid Rate Loans.
Significant Assets. At the date of any sale, transfer, assignment, or
other disposition of assets of the Borrower or any of its Subsidiaries (or as
of the date of any Default or Event of Default), assets of the Borrower or any
of its Subsidiaries (including Equity Securities of Subsidiaries of the
Borrower) which generated thirty-three and one-third percent (33 1/3%) or more
of the consolidated revenues of the Borrower during the four (4) fiscal
quarters of the Borrower most recently ended (the "Measuring Period"),
provided that assets of the Borrower or any of its Subsidiaries (including
Equity Securities of Subsidiaries of the Borrower) which do not meet the
definition of Significant Assets in the first part of this sentence shall
nonetheless be deemed to be Significant Assets if such assets generated
revenues for the Measuring Period that if subtracted from the consolidated
revenues of the Borrower for the Measuring Period would result in consolidated
revenues of the Borrower for the Measuring Period of less than $400,000,000.
14
S&P Rating. With respect to any Entity which is the issuer or obligor
with respect to commercial paper, the rating assigned to such entity by
Standard & Poor's Ratings Service, a division of The XxXxxx-Xxxx Companies,
Inc., from time to time in effect.
Subsidiary. Any Entity of which the designated parent shall at any
time own directly or indirectly through a Subsidiary or Subsidiaries at least
a majority (by number of votes) of the outstanding Voting Equity Securities.
Syndication Agent. The First National Bank of Chicago, acting as
syndication agent.
Total Commitment. The sum of the Commitments of the Banks, as in
effect from time to time. As of the Closing Date the Total Commitment is
$200,000,000.
12b-1 Fees. All or any portion of (a) the compensation or fees paid,
payable, or expected to be payable to the Borrower or any of its Subsidiaries
for acting as the distributor of securities as permitted under Rule 12b-l
under the 1940 Act, (b) the contingent deferred sales charges or redemption
fees paid, payable, or expected to be paid to the Borrower or any of its
Subsidiaries, and (c) any right, title, or interest in or to any such
compensation or fees.
Type. As to any Loan, its nature as an Alternative Base Rate Loan,
an Absolute Rate Loan, a Eurodollar Rate Loan or a Competitive Bid Eurodollar
Loan, as the case may be.
Unrestricted Subsidiary. A Subsidiary that is not a Restricted
Subsidiary.
Voting Equity Securities. Equity Securities of any class or classes
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the Entity that issued such Equity
Securities.
1.2 Rules of Interpretation.
(a) A reference to any Contract or other document shall
include such Contract or other document as amended, modified, or supplemented
from time to time in accordance with its terms and the terms of this Credit
Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any Government Mandate includes any
amendment or modification to such Government Mandate or any successor
Government Mandate.
(d) A reference to any Person includes its permitted
successors and permitted assigns. Without limiting the generality of the
foregoing, a reference to any Bank shall include any Person that succeeds
generally to its assets and liabilities.
15
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by GAAP.
(f) The words "include, "includes," and "including" are not
limiting.
(g) All terms not specifically defined herein or by GAAP,
which terms are defined in the Uniform Commercial Code as in effect in The
State of New York, have the meanings assigned to them therein.
(h) Reference to a particular "section, Section, Schedule, or
Exhibit refers to that Section, Schedule, or Exhibit of this Credit Agreement
unless otherwise indicated.
(i) The words "herein", "hereof", and "hereunder" and words
of like import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
2.0. THE REVOLVING CREDIT FACILITY.
2.1 Commitment to Lend.
(a) Subject to the terms and conditions set forth in Section
10 hereof, each of the Banks severally shall lend to the Borrower, and the
Borrower may borrow, repay, and reborrow from time to time between the Closing
Date and the Maturity Date upon notice by the Borrower to the Administrative
Agent given in accordance with Section 2.7, such sums as are requested by the
Borrower up to a maximum aggregate principal amount outstanding (after giving
effect to all amounts requested) at any one time equal to such Bank's
Commitment, provided that the sum of (A) the outstanding amount of the
Revolving Credit Loans (after giving effect to all amounts requested) plus (B)
the outstanding amount of Competitive Bid Rate Loans shall not at any time
exceed the Total Commitment. The Revolving Credit Loans shall be made pro rata
in accordance with each Bank's Commitment Percentage; provided that the
failure of any Bank to lend in accordance with this Credit Agreement shall not
release any other Bank or the Administrative Agent from their obligations
hereunder, nor shall any Bank have any responsibility or liability in respect
of a failure of any other Bank to lend in accordance with this Credit
Agreement. Each request for a Revolving Credit Loan and each borrowing
hereunder shall constitute a representation and warranty by the Borrower that
the conditions set forth in Section 10 have been satisfied on the date of such
request.
(b) In the event that, at any time when the conditions
precedent for any Loan have been satisfied, a Bank or the Administrative
Agent, as the case may be, fails or refuses to fund its portion of such Loan,
then, until such time as such Bank or the Administrative Agent, as the case
may be, has funded its portion of such Loan, or all of the other Banks and/or
the Administrative Agent, as the case may be, have received payment in full of
the principal and interest due in respect of such Loan, such non-funding Bank
or Administrative Agent, as the case may be, shall not have the right to
receive payment of any principal, interest or fees from the Borrower in
respect of its Loans.
16
2.2 Facility Fee.
The Borrower shall pay to the Administrative Agent for the accounts
of the Banks in accordance with their respective Commitment Percentages a
facility fee on the daily average amount of the Total Commitment as of the
most recently completed calendar quarter calculated at the rate per annum, on
the basis of a 360-day year for the actual number of days elapsed, as
determined in accordance with the chart below with respect to the Borrower's
commercial paper rating as of the last Business Day of each calendar quarter.
Notwithstanding the provisions of Section 2.11.1 hereof, for purposes of this
Section 2.2, the Total Commitment shall not be reduced by the amount of
Competitive Bid Rate Loans outstanding. The facility fee shall be payable
quarterly in arrears on the first Business Day of each calendar quarter for
the immediately preceding calendar quarter commencing on the first such date
following the date hereof, with a final payment on the Maturity Date or any
earlier date on which the Total Commitment shall terminate. In no case shall
any portion of the facility fee be refundable.
The facility fee shall be calculated based upon the Borrower's S&P
Rating and Xxxxx'x Rating in effect as of any date of determination as
follows:
-------------------------------------------------------------------------------
Borrower's
S&P Rating/Xxxxx'x Rating: at least Facility Fee
-------------------------------------------------------------------------------
A-1+ and P-1 0.080%
-------------------------------------------------------------------------------
A-1 and P-1 0.090%
-------------------------------------------------------------------------------
A-1 and P-2 or A-2 and P-1 0.125%
-------------------------------------------------------------------------------
A-2 and P-2 0.150%
-------------------------------------------------------------------------------
Notwithstanding the foregoing, if (a) the Borrower's S&P Rating at
any time declines below A-2, or (b) the Borrower's Xxxxx'x Rating at any time
declines below P-2, or (c) the Borrower loses both its Xxxxx'x Rating and its
S&P Rating at any time, the facility fee shall be 0.200%. If, subsequent to
any such rating decline or loss of such ratings, as the case may be, the
applicable rating is upgraded to a rating at least equal to A-2 and P-2 (as
applicable) or the Borrower is able to again obtain ratings of at least A-2
and P-2, as the case may be, the above table shall, from and after the date of
such occurrence (until such time, if any, that the Borrower's S&P Rating or
Xxxxx'x Rating again declines below A-2 or P-2, respectively, or the Borrower
again loses such ratings), govern the facility fee.
2.3 Utilization Fee.
For any calendar quarter in which the average aggregate daily
outstanding balance of the Loans exceeds 33 1/3% of the daily average amount
of the Total Commitment for such quarter, the Borrower shall pay to the
Administrative Agent for the accounts of the Banks in accordance
17
with their respective Commitment Percentages, a utilization fee calculated at
a rate per annum equal to 0.10% of the average aggregate outstanding amount of
the Loans during such calendar quarter, provided that for any calendar quarter
in which the average aggregate daily outstanding balance of the Loans exceeds
66 2/3% of the daily average amount of the Total Commitment for such quarter,
such utilization fee for any such calendar quarter shall be increased to 0.20%
of the average aggregate outstanding amount of the Loans during such calendar
quarter. The utilization fee shall be payable on the earlier of five (5)
Business Days after the end of any calendar quarter in which such fee shall be
due and owing in accordance with this Section 2.3 or the Maturity Date or any
earlier date on which the Total Commitment shall terminate. In no case shall
any portion of the utilization fee be refundable.
2.4 Reduction of Total Commitment.
The Borrower shall have the right at any time and from time to time
upon three (3) Business Days' prior written notice to the Administrative Agent
to reduce by at least $1,000,000 or integral multiples of $1,000,000 in excess
thereof, or to terminate entirely, the unborrowed portion of the Total
Commitment, whereupon the Commitments of the Banks shall be reduced pro rata
in accordance with their respective Commitment Percentages of the amount
specified in such notice or, as the case may be, terminated. Promptly after
receiving any notice of the Borrower delivered pursuant to this Section 2.4,
the Administrative Agent will notify the Banks of the substance thereof. Upon
the effective date of any such reduction or termination, the Borrower shall
pay to the Administrative Agent for the respective accounts of the Banks the
full amount of any facility fee then accrued on the amount of the reduction.
No reduction or termination of the Commitments may be reinstated.
2.5 The Notes.
The Revolving Credit Loans shall be evidenced by separate promissory
notes of the Borrower in substantially the form of Exhibit B hereto (each a
"Note"), dated as of the Closing Date and completed with appropriate
insertions. One Note shall be payable to the order of each Bank in a principal
amount equal to such Bank's Commitment or, if less, the outstanding amount of
all Revolving Credit Loans made by such Bank, plus interest accrued thereon,
as set forth below. The Borrower irrevocably authorizes each Bank to make or
cause to be made, at or about the time of the Drawdown Date of any Revolving
Credit Loan or at the time of receipt of any payment of principal on such
Bank's Note, an appropriate notation on such Bank's Record reflecting the
making of such Revolving Credit Loan or (as the case may be) the receipt of
such payment. The outstanding amount of the Revolving Credit Loans set forth
on such Bank's Record shall be prima facie evidence of the principal amount
thereof owing and unpaid to such Bank, but the failure to record, or any error
in so recording, any such amount on such Bank's Record shall not limit or
otherwise affect the obligations of the Borrower hereunder or under any Note
to make payments of principal of or interest on any Note when due.
18
2.6 Interest on Revolving Credit Loans.
2.6.1 Interest Rates.
Except as otherwise provided in Section 4.10, Revolving
Credit Loans shall bear interest as follows:
(a) Each Alternative Base Rate Loan shall bear interest at
an annual rate equal to the Alternative Base Rate as in effect from time to
time while such Alternative Base Rate Loan is outstanding.
(b) Each Eurodollar Rate Loan shall bear interest for each
Interest Period at an annual rate equal to the sum of the Eurodollar Rate for
such Interest Period plus the Eurodollar Rate Applicable Margin in effect from
time to time during such Interest Period.
2.6.2. Interest Payment Dates.
The Borrower shall pay all accrued interest on each
Revolving Credit Loan in arrears on each Interest Payment Date with respect
thereto.
2.7 Requests for Revolving Credit Loans.
The Borrower shall give to the Administrative Agent written notice in
the form of Exhibit C hereto (or telephonic notice confirmed in a writing in
the form of Exhibit D hereto) of each Revolving Credit Loan requested
hereunder (a "Loan Request") no later than (a) 11:00 a.m. (Hartford,
Connecticut time) on the proposed Drawdown Date of any Alternative Base Rate
Loan and (b) two (2) Eurodollar Business Days prior to the proposed Drawdown
Date of any Eurodollar Rate Loan. Each such notice shall specify (i) the
principal amount of the Revolving Credit Loan requested, (ii) the proposed
Drawdown Date of such Revolving Credit Loan, (iii) the Type of such Revolving
Credit Loan, and (iv) the Interest Period for such Loan if such Loan is a
Eurodollar Rate Loan. Promptly upon receipt of any such Loan Request, the
Administrative Agent shall notify each of the Banks thereof. Each Loan Request
shall be irrevocable and binding on the Borrower and shall obligate the
Borrower to accept the Revolving Credit Loan requested from the Banks on the
proposed Drawdown Date. Each Loan Request shall be in a minimum aggregate
amount of $1,000,000 or in an integral multiple of $1,000,000 in excess
thereof.
2.8 Conversion Options.
2.8.1 Conversion to Eurodollar Rate Loan.
The Borrower may elect from time to time, subject to Section
2.10, to convert any outstanding Alternative Base Rate Loan to a Eurodollar
Rate Loan, provided that (a) the Borrower shall give the Administrative Agent
at least two (2) Eurodollar Business Days' prior written notice of such
election; and (b) no Alternative Base Rate Loan may be converted into a
Eurodollar Rate Loan when any Default or Event of Default has occurred and is
continuing.
19
Each notice of election of such conversion, and each acceptance by the
Borrower of such conversion, shall be deemed to be a representation and
warranty by the Borrower that no Default or Event of Default has occurred and
is continuing. The Administrative Agent shall notify the Banks promptly of any
such notice. On the date on which such conversion is being made, each Bank
shall take such action as is necessary to transfer its Commitment Percentage
of such Loans to its Eurodollar Lending Office. All or any part of outstanding
Alternative Base Rate Loans may be converted into a Eurodollar Rate Loan as
provided herein, provided that any partial conversion shall be in an aggregate
principal amount of $1,000,000 or an integral multiple of $1,000,000 in excess
thereof.
2.8.2 Continuation of Type of Revolving Credit Loan.
(a) All Alternative Base Rate Loans shall continue as
Alternative Base Rate Loans until converted into Eurodollar Rate Loans as
provided in Section 2.8.1.
(b) Any Eurodollar Rate Loan may, subject to Section 2.10,
be continued, in whole or in part, as a Eurodollar Rate Loan upon the
expiration of the Interest Period with respect thereto, provided that (i) the
Borrower shall give the Administrative Agent at least two (2) Eurodollar
Business Days' prior written notice of such election; (ii) no Eurodollar Rate
Loan may be continued as such when any Default or Event of Default has
occurred and is continuing, but shall be automatically converted to an
Alternative Base Rate Loan on the last day of the first Interest Period
relating thereto ending during the continuance of any Default or Event of
Default; and (iii) any partial continuation of a Eurodollar Rate Loan shall be
in an aggregate principal amount of $1,000,000 or an integral multiple of
$1,000,000 in excess thereof. Each notice of election of such continuance of a
Eurodollar Rate Loan, and each acceptance by the Borrower of such continuance,
shall be deemed to be a representation and warranty by the Borrower that no
Default or Event of Default has occurred and is continuing.
(c) If the Borrower shall fail to give any notice of
continuation of a Eurodollar Rate Loan as provided under this Section 2.8.2,
the Borrower shall be deemed to have requested a conversion of the affected
Eurodollar Rate Loan to an Alternative Base Rate Loan on the last day of the
then current Interest Period with respect thereto.
(d) The Administrative Agent shall notify the Banks promptly
when any such continuation or conversion contemplated by this Section 2.8.2 is
scheduled to occur. On the date on which any such continuation or conversion
is to occur, each Bank shall take such action as is necessary to transfer its
Commitment Percentage of such Loans to its Domestic Lending Office or its
Eurodollar Lending Office as appropriate.
2.8.3 Eurodollar Rate Loans.
Any conversion to or from Eurodollar Rate Loans shall be in
such amounts and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of all Eurodollar Rate Loans
having the same Interest Period shall not be less than $1,000,000 or an
integral multiple of $1,000,000 in excess thereof.
20
2.8.4 Conversion Requests.
All notices of the conversion or continuation of a Loan
provided for in this Section 2.8 shall be in writing in the form of Exhibit E
hereto (or shall be given by telephone and confirmed by a writing in the form
of Exhibit F hereto). Each such notice shall specify (a) the principal amount
and Type of the Loan subject thereto, (b) the date on which the current
Interest Period of such Loan ends if such Loan is a Eurodollar Rate Loan, and
(c) the new Interest Period for such Loan if such Loan is a Eurodollar Rate
Loan. Promptly upon receipt of any such notice, the Administrative Agent shall
notify each of the Banks thereof. Each such notice shall be irrevocable and
binding on the Borrower.
2.9 Funds for Revolving Credit Loans.
2.9.1 Funding Procedures.
Not later than 1:00 p.m. (Hartford, Connecticut time) on the
proposed Drawdown Date of any Revolving Credit Loans or the Drawdown Date of
any Revolving Credit Loans under Section 2.7, each of the Banks will make
available to the Administrative Agent, at the Administrative Agent's Head
Office, in immediately available funds, the amount of such Bank's Commitment
Percentage of the amount of the requested Revolving Credit Loans. Upon receipt
from each Bank of such amount, and upon receipt of the documents required by
Section 10 and the satisfaction of the other conditions set forth therein, to
the extent applicable, the Administrative Agent will make available to the
Borrower the aggregate amount of such Revolving Credit Loans made available to
the Administrative Agent by the Banks. The failure or refusal of any Bank to
make available to the Administrative Agent at the aforesaid time and place on
any Drawdown Date the amount of its Commitment Percentage of the requested
Revolving Credit Loans shall not relieve any other Bank from its several
obligation hereunder to make available to the Administrative Agent the amount
of such other Bank's Commitment Percentage of any requested Revolving Credit
Loans, but no other Bank shall be liable in respect of the failure of such
Bank to make available such amount.
2.9.2 Advances by Administrative Agent.
The Administrative Agent may, unless notified to the
contrary by any Bank prior to a Drawdown Date, assume that such Bank has made
available to the Administrative Agent on such Drawdown Date the amount of such
Bank's Commitment Percentage of the Revolving Credit Loans to be made on such
Drawdown Date, and the Administrative Agent may (but it shall not be required
to), in reliance upon such assumption, make available to the Borrower a
corresponding amount. If any Bank makes available to the Administrative Agent
such amount on a date after such Drawdown Date, such Bank shall pay to the
Administrative Agent on demand an amount equal to the weighted average
interest rate paid by the Administrative Agent for federal funds acquired by
the Administrative Agent during each day included in such period, times the
amount of such Bank's Commitment Percentage of such Revolving Credit Loans
calculated on the basis of a 360-day year for the actual number of days
elapsed. A statement of
21
the Administrative Agent submitted to such Bank with respect to any amounts
owing under this paragraph shall be prima facie evidence of the amount due and
owing to the Administrative Agent by such Bank. If the amount of such Bank's
Commitment Percentage of such Revolving Credit Loans is not made available to
the Administrative Agent by such Bank within three (3) Business Days following
such Drawdown Date, the Administrative Agent shall be entitled to recover such
amount from the Borrower within one (1) Business Day after demand therefor,
with interest thereon at the rate per annum applicable to the Revolving Credit
Loans made on such Drawdown Date.
2.10 Limit on Number of Eurodollar Rate Loans.
At no time shall there be outstanding Eurodollar Rate Loans having
more than twenty-five (25) different Interest Periods.
2.11 Competitive Bid Rate Loans.
2.11.1 Competitive Bid Rate Option.
The Borrower may from time to time, as set forth in this
Section, solicit offers from the Banks to make Competitive Bid Rate Loans to
the Borrower. At no time may the aggregate amount of Competitive Bid Rate
Loans outstanding hereunder exceed the Competitive Bid Rate Maximum Amount.
The Banks may, but shall have no obligation to, make such offers and the
Borrower may, but shall have no obligation to, accept any such offers. While
any Competitive Bid Rate Loans are outstanding, the Total Commitment shall be
reduced by an amount equal to the aggregate amount of Competitive Bid Rate
Loans outstanding and each Bank's Commitment shall be so reduced pro rata in
accordance with each Bank's Commitment Percentage. Except as provided in the
immediately preceding sentence, no Bank's obligation to fund its pro rata
portion of Loans other than Competitive Bid Rate Loans shall be reduced or
otherwise affected by virtue of such Bank's making Competitive Bid Rate Loans
hereunder.
2.11.2 Competitive Bid Rate Quote Request.
When the Borrower wishes to solicit offers to make
Competitive Bid Rate Loans, it shall transmit to the Administrative Agent, by
telephone, confirmed promptly by a telecopy, a competitive bid rate quote
request substantially in the form of Exhibit G (a "Competitive Bid Rate Quote
Request") hereto prior to 2:00 p.m. (Hartford, Connecticut time) on (x) the
fourth (4th) Business Day prior to the date of the Loan proposed therein, in
the case of a Eurodollar Auction, or (y) the Business Day next preceding the
date of the Loan proposed therein, in the case of an Absolute Rate Auction
((x) or (y) constituting the "Competitive Bid Rate Activation Date" for such
Loan), which Competitive Bid Rate Quote Request shall certify that no Default
then exists or would be caused by the funding of the proposed Competitive Bid
Rate Loan or Loans, and shall specify:
(a) the proposed date of the Competitive Bid Rate Loan,
which must be a Business Day;
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(b) the aggregate amount of such Competitive Bid Rate
Loan, which shall be $10,000,000 or a larger multiple of $1,000,000;
(c) the duration of the Interest Period applicable
thereto, which shall be from and including seven (7) to and including one
hundred eighty (180) days; and
(d) whether the Competitive Bid Rate Quotes requested are to
set forth a Competitive Bid Rate Margin or a Competitive Bid Absolute Rate, or
both.
The Borrower may request offers to make Competitive Bid Rate Loans for only
one (1) Interest Period in a single Competitive Bid Rate Quote Request. Upon
each submission of a Competitive Bid Rate Quote Request in excess of the first
three (3) such Competitive Bid Rate Quote Requests during any month, the
Borrower shall pay a fee of $500 to the Administrative Agent.
2.11.3 Invitation for Competitive Bid Request Quotes.
Promptly upon receipt of a Competitive Bid Rate Quote
Request, the Administrative Agent shall send to the Banks, by telecopy, not
later than 4:00 p.m. (Hartford, Connecticut time) on the date such Competitive
Bid Rate Quote Request is received by the Administrative Agent, an invitation
for Competitive Bid Rate Quotes substantially in the form of Exhibit H
attached hereto, which shall constitute an invitation by the Borrower to each
Bank to submit Competitive Bid Rate Quotes to the Administrative Agent for
consideration by the Borrower in accordance with this Section.
2.11.4 Submission and Contents of Competitive Bid Rate
Quotes.
(a) Each Bank may, but shall not have any obligation to,
submit a Competitive Bid Rate Quote containing one or more offers to make
Competitive Bid Rate Loans in response to any invitation for Competitive Bid
Rate Quotes. Each Competitive Bid Rate Quote must comply with the requirements
of this Section 2.11 and must be submitted to the Administrative Agent by
telecopy not later than (x) 1:00 p.m. (Hartford, Connecticut time) on the
third (3rd) Business Day prior to the proposed date of the Competitive Bid
Rate Loan, in the case of a Eurodollar Auction, or (y) 10:30 a.m. (Hartford,
Connecticut time) on the proposed date of the Competitive Bid Rate Loan, in
the case of an Absolute Rate Auction; provided, however, that Competitive Bid
Rate Quotes submitted by the Administrative Agent (or any affiliate of the
Administrative Agent) in the capacity of Bank may be submitted, and may only
be submitted, if the Administrative Agent or such affiliate notifies the
Borrower of the terms of the offer or offers contained therein no later than
(x) 12:00 noon (Hartford, Connecticut time) on the third (3rd) Business Day
prior to the proposed date of the Competitive Bid Rate Loan, in the case of
Eurodollar Auction, or (y) 10:00 a.m. (Hartford, Connecticut time) on the
proposed date of the Competitive Bid Rate Loan, in the case of an Absolute
Rate Auction. Subject to Sections 4, 10 and 11 hereof, any Competitive Bid
Rate Quote so made shall be irrevocable except with the written consent of the
Administrative Agent given pursuant to the written instructions of the
Borrower.
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(b) Each Competitive Bid Rate Quote shall be in
substantially the form of Exhibit I attached hereto and shall specify:
(i) the proposed date of the Competitive Bid Rate
Loan (which shall correspond to the date of the Competitive Bid Rate
Loan proposed by the Borrower);
(ii) the principal amount of the Competitive Bid
Rate Loan for which each such offer is being made, which principal
amount (x) must be $10,000,000 or a larger multiple of $1,000,000 and
(y) may not exceed the principal amount of the Competitive Bid Rate
Loans for which offers were requested;
(iii) in the case of a Eurodollar Auction, the
margin above or below the Eurodollar Rate (the "Competitive Bid Rate
Margin") offered for each such Competitive Bid Rate Loan, expressed
as a percentage to be added to or subtracted from such Eurodollar
Rate and rounded upward to the nearest one-hundredth of one percent
(1/100%);
(iv) in the case of an Absolute Rate Auction, the
fixed rate of interest per annum (the "Competitive Bid Absolute
Rate") offered for each such Competitive Bid Rate Loan; and
(v) the identity of the quoting Bank.
(c) Any Competitive Bid Rate Quote may be disregarded if it:
(i) is not substantially in conformity with Exhibit
I attached hereto or does not specify all of the information required
by Section 2.11.4(b);
(ii) contains qualifying, conditional or similar
language;
(iii) proposes terms other than or in addition to
those set forth in the applicable Competitive Bid Rate Quote Request;
or
(iv) is submitted to the Administrative Agent after
the time set forth in Section 2.11.4(a).
2.11.5 Notice to the Borrower.
The Administrative Agent shall promptly notify the Borrower
by telephone not later than (x) 1:30 p.m. (Hartford, Connecticut time) on the
third (3rd) Business Day prior to the proposed date of the Competitive Bid
Rate Loan, in the case of a Eurodollar Auction, or (y) 11:00 a.m. (Hartford,
Connecticut time) on the proposed date of the Competitive Bid Rate Loan, in
the case of an Absolute Rate Auction, confirmed promptly by telecopy, of the
terms of any Competitive Bid Rate Quote submitted by a Bank, specifying
whether it meets the requirements
24
of Section 2.11.4 hereof. The Administrative Agent shall promptly notify the
Borrower by telephone, confirmed promptly by telecopy, of the terms of any
Competitive Bid Rate Quote in conformity with Section 2.11.4 that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid Rate
Quote submitted by such Bank and previously transmitted to the Borrower. A
subsequent Competitive Bid Rate Quote may only be submitted prior to
acceptance by the Borrower of another quote under Section 2.11.6 hereof and
may serve only to correct a manifest error in a former Competitive Bid Rate
Quote. The Administrative Agent's notice to the Borrower shall specify (a) the
aggregate principal amount of Competitive Bid Rate Loans for which offers have
been received for each Interest Period specified in the related Competitive
Bid Rate Quote Request and (b) the respective principal amounts and
Competitive Bid Rate Margins or Competitive Bid Absolute Rates, as the case
may be, so offered.
2.11.6 Acceptance and Notice by the Borrower.
Not later than (i) 11:00 a.m. (Hartford, Connecticut time)
on the second (2nd) Business Day prior to the proposed date of the Competitive
Bid Rate Loan, in the case of a Eurodollar Auction, or (ii) 11:30 a.m.
(Hartford, Connecticut time) on the proposed date of the Competitive Bid Rate
Loan, in the case of an Absolute Rate Auction, the Borrower shall notify by
telephone, confirmed promptly by telecopy, the Administrative Agent of its
acceptance or non-acceptance of the offers extended to it pursuant to Section
2.11.5. In the case of acceptance, such notice shall be in the form of a Loan
Request and shall specify the aggregate principal amount of offers for each
Interest Period that are accepted and the Competitive Bid Rate Margin or
Competitive Bid Absolute Rate applicable thereto. The Borrower may accept any
Competitive Bid Rate Quote provided that:
(i) the aggregate principal amount of each
Competitive Bid Rate Loan may not exceed the applicable amount set
forth in the related Competitive Bid Rate Quote Request;
(ii) the principal amount of each Competitive Bid
Rate Loan must be $10,000,000 or a larger multiple of $1,000,000;
(iii) acceptance of offers may only be made on the
basis of ascending Competitive Bid Rate Margins or Competitive Bid
Absolute Rates, as the case may be, for a given Interest Period and
amount; and
(iv) notwithstanding clause (iii) above, the
Borrower need not accept any offer that is described in Section
2.11.4(c) or that otherwise fails to comply with the requirements of
this Credit Agreement.
2.11.7 Allocation by the Administrative Agent; Notice to
Banks of Acceptance of Offers.
If offers to make Competitive Bid Rate Loans are made by two
or more Banks with the same Competitive Bid Rate Margins or Competitive Bid
Absolute Rates, as the case
25
may be, for an aggregate principal amount greater than the amount in respect
of which such offers are accepted by the Borrower for the related Interest
Period, the principal amount of Competitive Bid Rate Loans in respect of which
such offers are accepted shall be allocated by the Administrative Agent among
such Banks as nearly as possible (in multiples of not less than $100,000, and
otherwise as the Administrative Agent may deem appropriate) in proportion to
the aggregate principal amounts of such offers. The Administrative Agent shall
promptly notify each Bank whose Competitive Bid Rate Quote or any portion
thereof was accepted by the Borrower and shall specify to such Bank the amount
of any Competitive Bid Rate Loan or its portion of any Competitive Bid Rate
Loan, as applicable, to be made available by such Bank in accordance with
Section 2.11.8 hereof, and the Competitive Bid Rate Margin or Competitive Bid
Absolute Rate applicable thereto. Determinations by the Administrative Agent
of the amounts of the Competitive Bid Rate Loans shall be conclusive and
binding, absent obvious error.
2.11.8 Funding of Competitive Bid Rate Loans.
Not later than 1:00 p.m. (Hartford, Connecticut time) on the
date specified in the applicable Competitive Bid Rate Quote Request, each Bank
whose Competitive Bid Rate Quote Request was accepted (in whole or in part)
shall make available its share of such Competitive Bid Rate Loan (as specified
by the Administrative Agent pursuant to Section 2.11.7 hereof), in immediately
available funds, to the Administrative Agent. Unless the Administrative Agent
determines that any applicable condition specified in Section 10 or this
Section 2.11 has not been satisfied, the Administrative Agent will make the
funds so received from the Banks available to the Borrower prior to 2:00 p.m.
(Hartford, Connecticut time) on the date of such Competitive Bid Rate Loan.
2.11.9 Maturity of Competitive Bid Rate Loans; Prepayment.
Each Competitive Bid Rate Loan shall mature, and the
principal amount thereof shall be due and payable on the last day of the
Interest Period applicable to such Loan, but in no event later than the
Maturity Date. The Borrower shall have the right to prepay any Competitive Bid
Rate Loan at any time in amounts of $1,000,000 or a larger multiple thereof;
provided, however, that prepayments of Competitive Bid Eurodollar Loans shall
be subject to Section 4.9 hereof. The Borrower shall give the Administrative
Agent, no later than 10:00 a.m., Hartford, Connecticut time, at least one (1)
Business Day's prior written notice, of any proposed repayment pursuant to
this Section 2.11.9 of Competitive Bid Rate Loans subject to a Competitive Bid
Absolute Rate, and two (2) Eurodollar Business Days' notice of any proposed
repayment pursuant to this Section 2.11.9 of Competitive Bid Rate Loans
subject to a Competitive Bid Rate Margin, in each case, specifying the
proposed date of payment of such Competitive Bid Rate Loan and the principal
amount to be paid. Each such partial repayment of the Competitive Bid Rate
Loan shall be in an amount of $1,000,000 or an integral multiple of $1,000,000
in excess thereof and shall be accompanied by the payment of accrued interest
on the principal repaid to the date of payment.
26
2.11.10 Interest on Competitive Bid Rate Loans.
Each Competitive Bid Rate Loan subject to a Competitive Bid
Rate Margin shall bear interest on the outstanding principal amount thereof,
for the Interest Period applicable thereto, at a rate per annum equal to the
sum of the Eurodollar Rate, plus the Competitive Bid Rate Margin quoted by the
Bank or Banks making such Loan in accordance with this Section. Each
Competitive Bid Rate Loan subject to a Competitive Bid Absolute Rate shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a fixed rate per annum equal to the Competitive
Bid Absolute Rate quoted by the Bank or Banks making such Loan in accordance
with this Section. Interest on Competitive Bid Rate Loans shall be payable on
the Interest Payment Date applicable to such Loan. Interest on Competitive Bid
Rate Loans then outstanding shall also be due and payable on the Maturity
Date.
2.11.11 Competitive Bid Rate Notes.
The Borrower's obligation to pay the principal of, and
interest on the Competitive Bid Rate Loans made to the Borrower by the Banks
shall be evidenced by the Competitive Bid Rate Notes, each substantially in
the form of Exhibit J hereto.
3.0. REPAYMENT OF LOANS.
3.1 Maturity.
The Borrower shall pay on the Maturity Date, and there shall become
absolutely due and payable on the Maturity Date, all of the Loans outstanding
on such date, together with any and all accrued and unpaid interest thereon.
The Commitment shall terminate on the Maturity Date.
3.2 Mandatory Repayments of Revolving Credit Loans.
3.2.1 Loans in Excess of Commitment.
If at any time the sum of the outstanding amount of the
Loans exceeds the Total Commitment, then the Borrower shall immediately pay
the amount of such excess to the Administrative Agent for application first,
to the Competitive Bid Rate Loans; and second, to the Revolving Credit Loans.
Each prepayment of Loans shall be allocated among the Banks (and, in the case
of Banks making Competitive Bid Rate Loans, among such Banks), in proportion,
as nearly as practicable, to the respective unpaid principal amount of each
Bank's Note, with adjustments to the extent practicable to equalize any prior
payments or repayments not exactly in proportion.
3.2.2 Change of Control.
Upon the occurrence of a Change of Control or impending
Change of Control:
(a) the Borrower shall notify the Administrative Agent and
each Bank of such Change of Control or impending Change of Control as provided
in Section 6.5.4;
27
(b) the Commitments (but not the right of the Borrower to
convert and continue Types of Revolving Credit Loans under Section 2.8) shall
be suspended for the period from the date of such notice (or any Change of
Control Notice given by the Administrative Agent or a Bank as provided in
Section 6.5.4) through the later to occur of (i) the Change of Control Date or
(ii) the date forty (40) days after the date of such notice from the Borrower
(the "Suspension Period") and the Banks shall have no obligation to make Loans
to the Borrower;
(c) each Bank shall have the right within fifteen (15) days
after the date of such Bank's receipt of a Change of Control Notice under
clause (a) above to demand payment in full of its pro rata share of the
outstanding principal of all Loans, all accrued and unpaid interest thereon,
and any other amounts owing under the Loan Documents, as more particularly
described in clause (e) below;
(d) in the event that any Bank shall have made a demand
under clause (c) above the Borrower shall promptly, but in no event later than
five (5) Business Days after such demand, deliver notice to each Bank (which
notice shall identify the Bank making such demand) and, notwithstanding the
provisions of clause (c) above, the right of each Bank to demand repayment
shall remain in effect through the fifteenth (15th) day next succeeding
receipt by such Bank of any notice required to be given pursuant to this
clause (d), provided that the provisions of this clause (d) shall only apply
with respect to demands given by Banks prior to the expiration of the period
specified in clause (c); and
(e) in the event any Bank makes a demand under clause (c) or
clause (d) above, the Borrower shall on the last day of the Suspension Period
pay to the Administrative Agent for the credit of such Bank its pro rata share
of the outstanding principal of all Revolving Credit Loans (and, in the case
of a Bank that has made Competitive Bid Rate Loans, all Competitive Bid Rate
Loans ), all accrued and unpaid interest thereon, and any other amounts owing
under the Loan Documents, (provided that (i) any Bank may require the Borrower
to postpone prepayment of a Eurodollar Rate Loan or Competitive Bid Eurodollar
Loan until the last day of the Interest Period with respect to such Eurodollar
Rate Loan or Competitive Bid Eurodollar Loan, and (ii) if any Bank elects to
require prepayment of a Eurodollar Rate Loan or Competitive Bid Eurodollar
Loan that has an Interest Period ending less than sixty (60) days after the
date of such demand on a date that is not the last day of the Interest Period
for such Eurodollar Rate Loan or Competitive Bid Eurodollar Loan, such Bank
shall not be entitled to receive any amounts payable under Section 4.9 in
respect of the prepayment of such Eurodollar Rate Loan or Competitive Bid
Eurodollar Loan).
Upon any demand for payment by any Bank under this Section 3.2.2, the
Commitment hereunder provided by such Bank shall terminate, and such Bank
shall be relieved of all further obligations to make Loans to the Borrower. At
the end of the Suspension Period referred to above, the Commitments shall be
restored from all Banks that have not made a demand for payment under this
Section 3.2.2, and this Credit Agreement and the other Loan Documents shall
remain in full force and effect among the Borrower, such Banks and the
Administrative Agent,
28
with such changes as may be necessary to reflect the termination of the credit
provided by the Banks that made a demand for payment under this Section 3.2.2.
3.3 Optional Repayments of Revolving Credit Loans.
The Borrower shall have the right, at its election, to repay the
outstanding amount of the Revolving Credit Loans, as a whole or in part, at
any time without penalty or premium, provided that any full or partial
repayment of the outstanding amount of any Eurodollar Rate Loans pursuant to
this Section 3.3 made on a date other than the last day of the Interest Period
relating thereto shall be subject to customary breakage charges as provided in
Section 4.9. The Borrower shall give the Administrative Agent, no later than
10:00 a.m., Hartford, Connecticut time, at least one (1) Business Day's prior
written notice, of any proposed repayment pursuant to this Section 3.3 of
Alternative Base Rate Loans, and two (2) Eurodollar Business Days' notice of
any proposed repayment pursuant to this Section 3.3 of Eurodollar Rate Loans,
in each case, specifying the proposed date of payment of Revolving Credit
Loans and the principal amount to be paid. Each such partial repayment of the
Revolving Credit Loans shall be in an amount of $1,000,000 or an integral
multiple of $1,000,000 in excess thereof, shall be accompanied by the payment
of accrued interest on the principal repaid to the date of payment, and shall
be applied, in the absence of instruction by the Borrower, first to the
principal of Alternative Base Rate Loans and then to the principal of
Eurodollar Rate Loans (in inverse order of the last days of their respective
Interest Periods). Each partial repayment shall be allocated among the Banks,
in proportion, as nearly as practicable, to the respective unpaid principal
amount of each Bank's Revolving Credit Loans, with adjustments to the extent
practicable to equalize any prior repayments not exactly in proportion. Any
amounts repaid under this Section 3.3 may be reborrowed prior to the Maturity
Date as provided in Section 2.7, subject to the conditions of Section 10.
4. 0 CERTAIN GENERAL PROVISIONS
4.1 Application of Payments.
Except as otherwise provided in this Credit Agreement, all payments
in respect of any Loan shall be applied first to accrued and unpaid interest
on such Loan and second to the outstanding principal of such Loan.
4.2 Funds for Payments.
4.2.1 Payments to Administrative Agent.
All payments of principal, interest, commitment fees and any
other amounts due hereunder or under any of the other Loan Documents shall be
made to the Administrative Agent, for the respective accounts of the Banks and
the Administrative Agent, at the Administrative Agent's Head Office, as the
case may be, or at such other location that the Administrative Agent may from
time to time designate, in each case in immediately available funds or
directly from the proceeds of Loans.
29
4.2.2 No Offset, Etc.
All payments by the Borrower hereunder and under any of the
other Loan Documents shall be made without setoff or counterclaim and free and
clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions, or
conditions of any nature now or hereafter imposed or levied by any Government
Authority unless the Borrower is compelled by Government Mandate to make such
deduction or withholding. If any such obligation is imposed upon the Borrower
with respect to any amount payable by it hereunder or under any of the other
Loan Documents (other than with respect to taxes on the income or profits of
any Bank or the Administrative Agent), the Borrower will pay to the
Administrative Agent, for the account of the Banks or (as the case may be) the
Administrative Agent, on the date on which such amount is due and payable
hereunder or under such other Loan Document, such additional amount in Dollars
as shall be necessary to enable the Banks or the Administrative Agent to
receive the same net amount which the Banks or the Administrative Agent would
have received on such due date had no such obligation been imposed upon the
Borrower. The Borrower will deliver promptly to the Administrative Agent
certificates or other valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by the Borrower hereunder or under
such other Loan Document. If a refund is received (either in cash or by means
of a credit against future tax obligations) by the Administrative Agent or any
Bank in respect of an amount previously paid by the Borrower pursuant to the
immediately preceding sentence, such refund shall be promptly paid over to the
Borrower.
4.2.3 Fees Non-Refundable.
Except as expressly set forth herein, all fees payable
hereunder are non-refundable, provided that (a) if any of the Banks is finally
adjudicated or is found in final arbitration proceedings to have been grossly
negligent or to have committed willful misconduct with respect to the
transactions contemplated hereby, then no facility fee shall be payable to
such Bank after the date of such final adjudication or arbitration (and such
Bank shall refund any facility fee paid to it and attributable to the period
from and after the date on which such grossly negligent conduct or willful
misconduct occurred), and (b) if the Administrative Agent is finally
adjudicated or is found in final arbitration proceedings to have been grossly
negligent or to have committed willful misconduct with respect to the
transactions contemplated hereby, then no administrative agent's fee will be
due and payable after the date of such final adjudication or arbitration. If
the Administrative Agent is so finally found to have been grossly negligent or
to have committed willful misconduct, the amount of any administrative agent's
fee paid or prepaid by the Borrower and attributable to the period from and
after the date on which such grossly negligent conduct or willful misconduct
occurred shall be refunded.
4.3 Computations.
All computations of interest with respect to Alternative Base Rate
Loans (including, without limitation, interest computations with respect to
any Absolute Rate Loan) shall be based
30
on a year of 365 or 366 (as the case may be) days and paid for the actual
number of days elapsed. All computations of interest with respect to
Eurodollar Rate Loans or Competitive Bid Eurodollar Loans shall be based on a
year of 360 days and paid for the actual number of days elapsed. Except as
otherwise provided in the definition of the term "Interest Period" with
respect to Eurodollar Rate Loans or Competitive Bid Eurodollar Loans, whenever
a payment hereunder or under any of the other Loan Documents becomes due on a
day that is not a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and interest shall accrue during
such extension.
4.4 Inability to Determine Eurodollar Rate.
In the event, prior to the commencement of any Interest Period
relating to any Eurodollar Rate Loan or Competitive Bid Eurodollar Loan, the
Administrative Agent shall determine that adequate and reasonable methods do
not exist for ascertaining the Eurodollar Rate that would otherwise determine
the rate of interest to be applicable to any Eurodollar Rate Loan or
Competitive Bid Eurodollar Loan during any Interest Period, the Administrative
Agent shall forthwith give notice of such determination (which shall be
conclusive and binding on the Borrower and the Banks) to the Borrower and the
Banks. In such event (a) any Loan Request or Conversion Request with respect
to Eurodollar Rate Loans or Competitive Bid Eurodollar Loans shall be
automatically withdrawn and shall be deemed a request for Alternative Base
Rate Loans, (b) each Eurodollar Rate Loans or Competitive Bid Eurodollar Loans
will automatically, on the last day of the then current Interest Period
relating thereto, become an Alternative Base Rate Loan, and (c) the
obligations of the Banks to make Eurodollar Rate Loans or Competitive Bid
Eurodollar Loans shall be suspended until the Administrative Agent determines
that the circumstances giving rise to such suspension no longer exist,
whereupon the Administrative Agent shall so notify the Borrower and the Banks.
4.5 Illegality.
Notwithstanding any other provisions herein, if any present or future
Government Mandate shall make it unlawful for any Bank to make or maintain
Eurodollar Rate Loans or Competitive Bid Eurodollar Loans, such Bank shall
forthwith give notice of such circumstances to the Borrower and the other
Banks and thereupon (a) the commitment of such Bank to make Eurodollar Rate
Loans or Competitive Bid Eurodollar Loans or convert Alternative Base Rate
Loans to Eurodollar Rate Loans or Competitive Bid Eurodollar Loans shall
forthwith be suspended, and (b) such Bank's Loans then outstanding as
Eurodollar Rate Loans or Competitive Bid Eurodollar Loans, if any, shall be
converted automatically to Alternative Base Rate Loans on the last day of each
then existing Interest Period applicable to such Eurodollar Rate Loans or
Competitive Bid Eurodollar Loans or within such earlier period after the
occurrence of such circumstances as may be required by Government Mandate. The
Borrower shall promptly pay the Administrative Agent for the account of such
Bank, upon demand by such Bank, any additional amounts necessary to compensate
such Bank for any costs incurred by such Bank in making any conversion in
accordance with this Section 4.5 other than on the last day of an Interest
Period, including any interest or fees payable by such Bank to lenders of
funds obtained
31
by it in order to make or maintain its Eurodollar Rate Loans or Competitive
Bid Eurodollar Loans hereunder.
4.6 Additional Costs, Etc.
If any present or future applicable Government Mandate (whether or
not having the force of law), shall:
(a) subject any Bank or the Administrative Agent to any tax,
levy, impost, duty, charge, fee, deduction, or withholding of any nature with
respect to this Credit Agreement, the other Loan Documents, such Bank's
Commitment, or the Loans (other than taxes based upon or measured by the
income or profits of such Bank or the Administrative Agent), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Bank of the
principal of or the interest on any Loans or any other amounts payable to any
Bank or the Administrative Agent under this Credit Agreement or the other Loan
Documents, or
(c) impose, increase, or render applicable (other than to
the extent specifically provided for elsewhere in this Credit Agreement) any
special deposit, reserve, assessment, liquidity, capital adequacy, or other
similar requirements (whether or not having the force of law) against assets
held by, or deposits in or for the account of, or loans by, or commitments of
an office of any Bank, or
(d) impose on any Bank or the Administrative Agent any other
conditions or requirements with respect to this Credit Agreement, the other
Loan Documents, the Loans, such Bank's Commitment, or any class of loans or
commitments of which any of the Loans or such Bank's Commitment forms a part,
and the result of any of the foregoing is:
(i) to increase by an amount deemed by such Bank to
be material the cost to any Bank of making, funding, issuing,
renewing, extending, or maintaining any of the Loans or such Bank's
Commitment, or
(ii) to reduce, by an amount deemed by such Bank or
the Administrative Agent, as the case may be, to be material, the
amount of principal, interest, or other amount payable to such Bank
or the Administrative Agent hereunder on account of such Bank's
Commitment or any of the Loans, or
(iii) to require such Bank or the Administrative
Agent to make any payment that, but for such conditions or
requirements described in clauses (a) through (d), would not be
payable hereunder, or forego any interest or other sum that, but for
such conditions or requirements described in clauses (a) through (d),
would be payable to such Bank or the Administrative Agent hereunder,
in any case the amount of which payment or foregone interest or other
sum is deemed by such Bank or the Administrative Agent, as the case
may be, to be material and is calculated by reference to the gross
amount of any
32
sum receivable or deemed received by such Bank or the Administrative
Agent from the Borrower hereunder, then, and in each such case, (aa)
the Borrower will, upon demand made by such Bank or (as the case may
be) the Administrative Agent at any time and from time to time (such
demand to be made in any case not later than the first to occur of
(I) the date one year after such event described in clause (i), (ii),
or (iii) giving rise to such demand, and (II) the date ninety (90)
days after both the payment in full of all outstanding Loans and the
termination of the Commitments) and as often as the occasion therefor
may arise, pay to such Bank or the Administrative Agent such
additional amounts as will be sufficient to compensate such Bank or
the Administrative Agent for such additional cost, reduction,
payment, foregone interest or other sum, (bb) the Borrower shall be
entitled, upon notice to the Administrative Agent and each Bank given
within ninety (90) days of any demand by a Bank under clause (aa), to
repay in cash in full all, but not less than all, of the Loans of
such Bank, together with all accrued and unpaid interest on such
Loans and any other amounts owing to such Bank under the Loan
Documents and terminate (in full and not in part) such Bank's
Commitment, and, (cc) in the event the Borrower elects to repay the
Loans of any Bank under clause (bb), each other Bank shall be
entitled, by notice to the Administrative Agent and the Borrower
given within thirty (30) days after receipt of the notice referred to
in clause (bb), to require the Borrower to repay in cash in full,
within thirty (30) days of such notice under this clause (cc), all,
but not less than all, of the Loans of such other Bank, together with
all accrued and unpaid interest thereon and any other amounts owing
to such other Bank under the Loan Documents. Subject to the terms
specified above in this Section 4.6, the obligations of the Borrower
under this Section 4.6 shall survive repayment of the Loans and
termination of the Commitments.
4.7 Capital Adequacy.
If after the date hereof any Bank or the Administrative Agent
determines that (a) the adoption of or change in any Government Mandate
(whether or not having the force of law) regarding capital requirements for
banks or bank holding companies or any change in the interpretation or
application thereof by any Government Authority with appropriate jurisdiction,
or (b) compliance by such Bank or the Administrative Agent, or any corporation
controlling such Bank or the Administrative Agent, with any Government Mandate
(whether or not having the force of law) has the effect of reducing the return
on such Bank's or the Administrative Agent's commitment with respect to any
Loans to a level below that which such Bank or the Administrative Agent could
have achieved but for such adoption, change, or compliance (taking into
consideration such Bank's or the Administrative Agent's then existing policies
with respect to capital adequacy and assuming full utilization of such
Entity's capital) by any amount reasonably deemed by such Bank or (as the case
may be) the Administrative Agent to be material, then such Bank or the
Administrative Agent may notify the Borrower of such fact. To the extent that
the amount of such reduction in the return on capital is not reflected in the
Alternative Base Rate, (aa) the Borrower shall pay such Bank or (as the case
may be) the Administrative Agent for the amount of such reduction in the
return on capital as and when such reduction is determined upon presentation
by such Bank or (as the case may be) the Administrative Agent of a certificate
in accordance with Section 4.8 hereof (but in any case not
33
later than the first to occur of (I) the date one year after such adoption,
change, or compliance causing such reduction, and (II) as to adoptions of or
changes in Government Mandates occurring prior to the repayment of the Loans
and the termination of the Commitment the date ninety (90) days after both the
payment in full of all outstanding Loans and termination of the Commitments),
(bb) the Borrower shall be entitled, upon notice to the Administrative Agent
and each Bank given within ninety (90) days of any notice by such Bank under
the next preceding sentence, to repay in cash in full all, but not less than
all, of the Loans of such Bank, together with all accrued and unpaid interest
on such Loans and any other amounts owing to such Bank under the Loan
Documents and terminate (in full and not in part) such Bank's Commitment, and,
(cc) in the event the Borrower elects to repay the Loans of any Bank under
clause (bb), each other Bank shall be entitled, by notice to the
Administrative Agent and the Borrower given within thirty (30) days after
receipt of the notice referred to in clause (bb), to require the Borrower to
repay in cash in full, within thirty (30) days of the notice under this clause
(cc), all, but not less than all, of the Loans of such other Bank, together
with all accrued and unpaid interest on such Loans and any other amounts owing
to such other Bank under the Loan Documents. Each Bank shall allocate such
cost increases among its customers in good faith and on an equitable basis.
Subject to the terms specified above in this Section 4.7, the obligations of
the Borrower under this Section 4.7 shall survive repayment of the Loans and
termination of the Commitments.
4.8 Certificate.
A certificate setting forth any additional amounts payable pursuant
to Section 4.6 or Section 4.7 and a brief explanation of such amounts which
are due and in reasonable detail the basis of the calculation and allocation
thereof, submitted by any Bank or the Administrative Agent to the Borrower,
shall be conclusive evidence, absent manifest error, that such amounts are due
and owing.
4.9 Indemnity.
The Borrower shall indemnify and hold harmless each Bank from and
against any loss, cost, or expense (excluding loss of anticipated profits)
that such Bank may sustain or incur as a consequence of (a) default by the
Borrower in payment of the principal amount of or any interest on any
Eurodollar Rate Loans or Competitive Bid Eurodollar Loans as and when due and
payable, including any such loss or expense arising from interest or fees
payable by such Bank to lenders of funds obtained by it in order to maintain
its Eurodollar Rate Loans or Competitive Bid Eurodollar Loans, (b) default by
the Borrower in making a borrowing or conversion after the Borrower has given
(or is deemed to have given) a Loan Request or a Conversion Request; or (c)
except as otherwise expressly provided in Section 3.2.2, the making of any
payment of a Eurodollar Rate Loan or Competitive Bid Eurodollar Loan or the
making of any conversion of any such Loan to an Alternative Base Rate Loan on
a day that is not the last day of the applicable Interest Period with respect
thereto, including interest or fees payable by such Bank to lenders of funds
obtained by it in order to maintain any such Loans. The obligations of the
Borrower under this Section 4.9 shall survive repayment of the Loans and
termination of the Commitments.
34
4.10 Interest After Default.
All amounts outstanding under the Loan Documents that are not paid
when due, including all overdue principal and (to the extent permitted by
applicable Government Mandate) interest and all other overdue amounts (after
giving effect to any applicable grace period), shall to the extent permitted
by applicable Government Mandate bear interest until such amount shall be paid
in full (after as well as before judgment) at a rate per annum equal to two
percent (2%) above the interest rate otherwise applicable to such amounts. Any
interest accruing under this section on overdue principal or interest shall be
due and payable upon demand.
5.0. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Banks and the
Administrative Agent as follows:
5.1 Corporate Authority.
5.1.1 Incorporation; Good Standing.
Each of the Borrower, its Subsidiaries, and the General
Partner (a) is a corporation, limited partnership or general partnership, as
the case may be, duly organized, validly existing, and in good standing under
the laws of its state of organization, (b) has all requisite corporate or
partnership power to own its material property and conduct its material
business as now conducted and as presently contemplated, and (c) is in good
standing as a foreign corporation, limited partnership or general partnership,
as the case may be, and is duly authorized to do business in each jurisdiction
where it owns or leases properties or conducts any business so as to require
such qualification except where a failure to be so qualified would not be
likely to have a Material Effect.
5.1.2 Authorization.
The execution, delivery, and performance of this Credit
Agreement and the other Loan Documents to which the Borrower, any of its
Subsidiaries, or the General Partner is or is to become a party and the
transactions contemplated hereby and thereby (a) are within the corporate or
partnership power of each such Entity, (b) have been duly authorized by all
necessary corporate or partnership proceedings on behalf of each such Entity,
(c) do not conflict with or result in any breach or contravention of any
Government Mandate to which any such Entity is subject, (d) do not conflict
with or violate any provision of the corporate charter or bylaws, or the
limited partnership certificate or agreement, or its governing documents in
the case of any general partnership, as the case may be, of any such Entity,
and (e) do not violate, conflict with, constitute a default or event of
default under, or result in any rights to accelerate or modify any obligations
under any Contract to which any such Entity is party or subject, or to which
any of its respective assets are subject, except, as to the foregoing clauses
(c) and (e) only, where the same would not be likely to have a Material
Effect.
35
5.1.3 Enforceability.
The execution and delivery of this Credit Agreement and the
other Loan Documents to which the Borrower, any of its Subsidiaries, or the
General Partner is or is to become a party will result in valid and legally
binding obligations of such Person enforceable against it in accordance with
the respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium, or other laws relating to or affecting generally the enforcement
of creditors' rights and by general principles of equity, regardless of
whether enforcement is sought in a Proceeding in equity or at law.
5.1.4 Equity Securities.
The General Partner is the only general partner of the
Borrower. All of the outstanding Equity Securities of the Borrower are validly
issued, fully paid, and non-assessable.
5.2 Governmental Approvals.
The execution, delivery, and performance by the Borrower, its
Subsidiaries, and the General Partner of this Credit Agreement and the other
Loan Documents to which the Borrower, any of its Subsidiaries, or the General
Partner is or is to become a party and the transactions contemplated hereby
and thereby do not require the approval or consent of, or filing with, any
Government Authority other than those already obtained and set forth on
Schedule 5.2.
5.3 Liens; Leases.
The assets reflected in the consolidated balance sheet of the
Borrower dated as of December 31, 1998 and delivered to the Administrative
Agent and the Banks under Section 5.4 are subject to no Liens except Permitted
Liens. Each of the Borrower and its Subsidiaries enjoys quiet possession under
all leases relating to Real Estate or personal property to which it is party
as a lessee, and each such lease is Fully Effective.
5.4 Financial Statements.
There has been furnished to the Administrative Agent and each of the
Banks (a) a consolidated balance sheet of the Borrower as at December 31,
1998, and a consolidated statement of income and cash flow of the Borrower for
the fiscal year then ended, certified by the Borrower's independent certified
public accountants, and (b) unaudited interim condensed consolidated balance
sheets of the Borrower and the Consolidated Subsidiaries as at March 31, 1999,
and interim condensed consolidated statements of income and of cash flow of
the Borrower and the Consolidated Subsidiaries for the respective fiscal
periods then ended and as set forth in the Borrower's Quarterly Report on Form
10-Q for such fiscal quarter. With respect to the financial statement prepared
in accordance with clause (a) above, such balance sheet and statement of
income have been prepared in accordance with GAAP and present fairly in all
material respects the financial position of the Borrower and the Consolidated
Subsidiaries as at the close of business on the respective dates thereof and
the results of operations of the Borrower
36
and the Consolidated Subsidiaries for the fiscal periods then ended; or, in
the case of the financial statements referred to in clause (b), have been
prepared in accordance with Rule 10-01 of Regulation S-X of the Securities and
Exchange Commission, and contain all adjustments necessary for a fair
presentation of (A) the results of operations of the Borrower for the periods
covered thereby, (B) the financial position of the Borrower at the date
thereof, and (C) the cash flows of the Borrower for periods covered thereby
(subject to year-end adjustments). There are no contingent liabilities of the
Borrower or the Consolidated Subsidiaries as of such dates involving material
amounts, known to the executive management of the Borrower that (aa) should
have been disclosed in said balance sheets or the related notes thereto in
accordance with GAAP and the rules and regulations of the Securities and
Exchange Commission, and (bb) were not so disclosed.
5.5 No Material Changes, Etc.
No change in the Business of the Borrower and its Consolidated
Subsidiaries, taken as a whole, has occurred since March 31, 1999 that has
resulted in a Material Effect.
5.6 Permits.
The Borrower and its Subsidiaries have all Permits necessary or
appropriate for them to conduct their Business, except where the failure to
have such Permits would not be likely to have a Material Effect. All of such
Permits are in full force and effect. Without limiting the foregoing, the
Borrower is duly registered as an "investment adviser" under the Investment
Advisers Act of 1940 and under the applicable laws of each state in which such
registration is required in connection with the investment advisory business
of the Borrower and in which the failure to obtain such registration would be
likely to have a Material Effect; Alliance Distributors is duly registered as
a "broker/dealer" under the Securities Exchange Act of 1934 and under the
securities or blue sky laws of each state in which such registration is
required in connection with the business conducted by Alliance Distributors
and where a failure to obtain such registration would be likely to have a
Material Effect, and is a member in good standing of the National Association
of Securities Dealers, Inc.; no Proceeding is pending or threatened with
respect to the suspension, revocation, or termination of any such registration
or membership, and the termination or withdrawal of any such registration or
membership is not contemplated by the Borrower or Alliance Distributors,
except, only with respect to registrations by the Borrower and Alliance
Distributors required under state law, as would not be likely to have a
Material Effect.
5.7 Litigation.
There is no Proceeding of any kind pending or threatened, in writing,
against the Borrower, any of its Subsidiaries, or the General Partner that
questions the validity of this Credit Agreement or any of the other Loan
Documents, or any action taken or to be taken pursuant hereto or thereto.
There is no Proceeding of any kind pending or threatened, in writing, against
the Borrower, any of its Subsidiaries, or the General Partner that is
reasonably likely to, either in any case or in the aggregate, impair or
prevent the Borrower's performance and observance of its obligations under
this Credit Agreement or the other Loan Documents.
37
5.8 Material Contracts.
Except as would not be likely to have a Material Effect, each
Contract to which any of the Borrower and its Subsidiaries is party or
subject, or by which any of their respective assets are bound (including
investment advisory contracts and investment company distribution plans) (a)
is Fully Effective, (b) is not subject to any default or event of default with
respect to the Borrower, any of its Subsidiaries or, to the best knowledge of
the executive management of the Borrower, any other party, (c) is not subject
to any notice of termination given or received by the Borrower or any of its
Subsidiaries, and (d) is, to the best knowledge of the executive management of
the Borrower, the legal, valid, and binding obligation of each party thereto
other than the Borrower and its Subsidiaries enforceable against such parties
according to its terms.
5.9 Compliance with Other Instruments, Laws, Etc.
None of the Borrower, its Subsidiaries, and the General Partner is,
in any respect material to the Borrower and its Consolidated Subsidiaries
taken as a whole, in violation of or default under (a) any provision of its
certificate of incorporation or by-laws, or its certificate of limited
partnership or agreement of limited partnership, or its governing documents in
the case of any general partnership, as the case may be, (b) any Contract to
which it is or may be subject or by which it or any of its properties are or
may be bound, or (c) any Government Mandate, including Government Mandates
relating to occupational safety and employment matters.
5.10 Tax Status.
The Borrower and its Subsidiaries (a) have made or filed all federal
and state income and all other tax returns, reports, and declarations required
by any Government Authority to which any of them is subject, except where the
failure to make or file the same would not be likely to have a Material
Effect, (b) have paid all taxes and other governmental assessments and charges
due, except those being contested in good faith and by appropriate Proceedings
or those where a failure to pay is not reasonably likely to have a Material
Effect, and (c) have set aside on their books provisions reasonably adequate
for the payment of all taxes for periods subsequent to the periods to which
such returns, reports, or declarations apply. There are no unpaid taxes in any
material amount claimed to be due from the Borrower or any of its Subsidiaries
by any Government Authority, and the executive management of the Borrower
knows of no basis for any such claim.
5.11 No Event of Default.
No Default or Event of Default has occurred and is continuing.
5.12 Holding Company and Investment Company Acts.
Neither the Borrower nor any of its Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding
38
Company Act of 1935. Neither the Borrower nor any of its Subsidiaries
(excluding investment companies in which the Borrower or a Consolidated
Subsidiary has made "seed money" investments permitted by Section 7.6(b)) is
an "investment company", as such term is defined in the 1940 Act.
5.13 Insurance.
The Borrower and its Subsidiaries maintain insurance with financially
sound and reputable insurers in such coverage amounts, against such risks,
with such deductibles and upon such other terms, or are self-insured in
respect of such risks (with appropriate reserves to the extent required by
GAAP), as is reasonable and customary for firms engaged in businesses similar
to those of the Borrower and its Subsidiaries. All policies of insurance
maintained by the Borrower or its Subsidiaries are Fully Effective. All
premiums due on such policies have been paid or accrued on the books of the
Borrower or its Subsidiaries, as appropriate.
5.14 Certain Transactions.
Except in connection with transactions occurring in the ordinary
course of business, and, taking into account the totality of the relationships
involved, with respect to transactions occurring on fair and reasonable terms
no less favorable to the Borrower and its Consolidated Subsidiaries taken as a
whole than would be obtained in comparable arms' length transactions with
Persons that are not Affiliates of the Borrower or its Subsidiaries, none of
the officers, directors, partners, or employees of the Borrower or any of its
Subsidiaries, or, to the knowledge of the executive management of the
Borrower, any Entity (other than a Subsidiary) in which any such officer,
director, partner, or employee has a substantial interest or is an officer,
director, trustee, or partner, is at present a party to any transaction with
the Borrower or any of its Subsidiaries (other than for or in connection with
services as officers, directors, partners, or employees, as the case may be),
including any Contract providing for the furnishing of services to or by,
providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any such officer, director, partner, employee,
or Entity.
5.15 Employee Benefit Plans.
Each contribution required to be made to a Guaranteed Pension Plan,
whether required to be made to avoid the incurrence of an accumulated funding
deficiency, the notice or lien provisions of section 302(f) of ERISA, or
otherwise, has been timely made. No waiver of an accumulated funding
deficiency or extension of amortization periods has been received with respect
to any Guaranteed Pension Plan. No liability to the PBGC (other than required
insurance premiums, all of which have been paid) has been incurred by the
Borrower or any ERISA Affiliate with respect to any Guaranteed Pension Plan
and there has not been any ERISA Reportable Event, or any other event or
condition which presents a material risk of termination of any Guaranteed
Pension Plan by the PBGC. Based on the latest valuation of each Guaranteed
Pension Plan (which in each case occurred within fifteen (15) months of the
date of the representation), and on the actuarial methods and assumptions
employed for that valuation, the aggregate benefit liabilities of all such
Guaranteed Pension Plans within the meaning of section 4001 of
39
ERISA did not exceed the aggregate value of the assets of all such Guaranteed
Pension Plans by more than $20,000,000, disregarding for this purpose the
benefit liabilities and assets of any Guaranteed Pension Plan with assets in
excess of benefit liabilities.
5.16 Regulations U and X.
The proceeds of the Loans shall be used by the Borrower (i) to
refinance advances outstanding under that certain Revolving Credit Agreement,
dated as of July 20, 1998, among the Borrower, NationsBank, N.A., individually
and as agent, The Chase Manhattan Bank, individually and as agent, The Bank of
New York, individually and as agent, and the lenders named therein, as
amended, restated, amended and restated, supplemented or otherwise modified
from time to time (the "Existing Credit Agreement"), (ii) to finance the
payment by the Borrower of certain commissions to brokers in connection with
the sale of "B" shares of investment companies and mutual funds managed or
advised by the Borrower or one of its Subsidiaries, (iii) for general
partnership purposes and working capital purposes, including, without
limitation, acquisitions and (iv) Capital Expenditures. No portion of any Loan
is to be used for the purpose of purchasing or carrying any "margin security"
or "margin stock" as such terms are used in Regulations U and X of the Board
of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224. The
Borrower is not engaged in the business of extending credit for the purpose of
purchasing or carrying any "margin security" or "margin stock." At no time
would more than 25% of the value of the assets of the Borrower or of the
Borrower and its Consolidated Subsidiaries that are subject to any
"arrangement" (as such term is used in section 221.2(g) of such Regulation U)
hereunder be represented by any "margin security" or "margin stock."
5.17 Environmental Compliance.
To the best of the Borrower's knowledge:
(a) none of the Borrower, its Subsidiaries, the General
Partner, and any operator of the Real Estate or any operations thereon is in
violation, or alleged violation, of any Government Mandate or Permit
pertaining to environmental, safety or public health matters, including the
Resource Conservation and Recovery Act ("RCRA"), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986 ("XXXX"), the Federal
Clean Water Act, the Federal Clean Air Act, and the Toxic Substances Control
Act (including RCRA, CERCLA and XXXX, collectively, the "Environmental Laws"),
which violation would be likely to have a material adverse effect on the
environment or a Material Effect;
(b) neither the Borrower nor any of its Subsidiaries has
received notice from any third party, including any Government Authority, (i)
that any one of them has been identified by the United States Environmental
Protection Agency ("EPA") as a potentially responsible party under CERCLA with
respect to a site listed on the National Priorities List, 40 C.F.R. Part 000
Xxxxxxxx X (1986); (ii) that any hazardous waste, as defined by 42 U.S.C.
section 9601(5), any hazardous substances as defined by 42 U.S.C. section
9601(14), any pollutant or contaminant as
40
defined by 42 U.S.C. section 9601(33) and any toxic substances, oil, hazardous
materials, or other chemicals or substances regulated by any Environmental
Laws ("Hazardous Substances") that any one of them has generated, transported,
or disposed of has been found at any site at which a Government Authority or
other third party has conducted, or has ordered that other parties conduct, a
remedial investigation, removal, or other response action pursuant to any
Environmental Law; or (iii) that it is or shall be a named party to any
Proceeding (in each case, contingent or otherwise) arising out of any third
party's incurrence of costs, expenses, losses, or damages of any kind
whatsoever in connection with the release of Hazardous Substances;
(c) no portion of the Real Estate has been used for the
handling, processing, storage, or disposal of Hazardous Substances except in
accordance with applicable Environmental Laws;
(d) no underground tank or other underground storage
receptacle for Hazardous Substances is located on any portion of the Real
Estate;
(e) in the course of any activities conducted by any of the
Borrower, its Subsidiaries, the General Partner, and operators of any Real
Estate, no Hazardous Substances have been generated or are being used on the
Real Estate except in accordance with applicable Environmental Laws;
(f) there have been no releases (i.e. any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing, or dumping) or threatened
releases of Hazardous Substances on, upon, into, or from the Real Estate that
would have a material adverse effect on the value of the Real Estate or the
environment;
(g) there have been no releases of Hazardous Substances on,
upon, from, or into any real property in the vicinity of any of the Real
Estate that (i) may have come to be located on the Real Estate through soil or
groundwater contamination, and, (ii) if so located, would have a material
adverse effect on the value of the Real Estate or the environment; and
(h) any Hazardous Substances that have been generated by any
of the Borrower and its Subsidiaries, or on the Real Estate by any other
Person, have been transported offsite only by carriers having an
identification number issued by the EPA, treated or disposed of only by
treatment or disposal facilities maintaining valid Permits as required under
applicable Environmental Laws, which transporters and facilities have been and
are, to the best of the Borrower's knowledge, operating in compliance with
such Permits and applicable Environmental Laws.
5.18 Subsidiaries, Etc.
Schedule 5.18 sets forth a list of (a) each Subsidiary of the
Borrower (in which each Restricted Subsidiary at the date hereof is
specifically identified as such), (b) the percentage of authorized and
outstanding Equity Securities of each class of each Subsidiary of the Borrower
owned, directly or indirectly, by the Borrower, and (c) any partnership or
joint venture in which
41
the Borrower or any of its Subsidiaries is engaged with any other Person.
Those Equity Securities of each Subsidiary of the Borrower which are owned
directly or indirectly by the Borrower are validly issued, fully paid, and
non-assessable.
5.19 Funded Debt.
Schedule 5.19 sets forth as of the end of the calendar month
immediately preceding the Closing Date all outstanding Funded Debt of the
Borrower and its Subsidiaries.
5.20 General.
The Borrower's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, and Quarterly Reports on Form 10-Q referred to in Section
5.4(a) conform in all material respects to the requirements of the Securities
Exchange Act of 1934, as amended, and to all applicable rules and regulations
of the Securities and Exchange Commission, and (b) as amended by interim
filings, do not contain an untrue statement of any material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are made, not
misleading.
6.0 AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any Bank has any obligation to make any Loans:
6.1 Punctual Payment.
The Borrower will duly and punctually pay or cause to be paid the
principal and interest on the Loans, the facility fee, the utilization fee,
and all other amounts provided for in this Credit Agreement and the other Loan
Documents to which the Borrower is party, all in accordance with the terms of
this Credit Agreement and such other Loan Documents.
6.2 Maintenance of Office.
The Borrower will maintain its chief executive office in New York,
New York, or at such other place in the United States of America as the
Borrower shall designate upon prior written notice to the Administrative
Agent, where notices, presentations, and demands to or upon the Borrower in
respect of the Loan Documents may be given or made.
6.3 Records and Accounts.
The Borrower will, and will cause each of its Subsidiaries to, keep
complete and accurate records and books of account.
6.4 Financial Statements, Certificates, and Information.
The Borrower will deliver to each of the Banks:
42
(a) as soon as practicable, but in any event not later
than ninety-five (95) days after the end of each fiscal year of the Borrower:
(i) the consolidated balance sheet of the Borrower
as at the end of such fiscal year;
(ii) the consolidating balance sheet of the Borrower
as at the end of such fiscal year;
(iii) the consolidated statement of income and
consolidated statement of cash flows of the Borrower for such fiscal
year; and
(iv) the consolidating statement of income and
consolidating statement of cash flows of the Borrower for such fiscal
year.
Each of the balance sheets and statements delivered under this Section 6.4(a)
shall (i) set forth in comparative form the figures for the previous fiscal
year; (ii) be in reasonable detail and prepared in accordance with GAAP based
on the records and books of account maintained as provided in Section 6.3;
(iii) as to items (i) and (iii) above, be accompanied by a certification by
the principal financial or accounting officer of the Borrower that the
information contained in such financial statements presents fairly in all
material respects the financial position of the Borrower and the Consolidated
Subsidiaries on the date thereof and results of operations and cash flows of
the Borrower and the Consolidated Subsidiaries for the periods covered
thereby; and (iv) as to items (i) and (iii) above, be certified, without
limitation as to scope, by KPMG Peat Marwick LLP or another firm of
independent certified public accountants reasonably satisfactory to the
Administrative Agent, and shall be accompanied by a written statement from
such accountants to the effect that in connection with their audit of such
financial statements nothing has come to their attention that caused them to
believe that the Borrower has failed to comply with the terms, covenants,
provisions or conditions of Section 6.3, Section 7, and Section 8 of this
Credit Agreement as to accounting matters (provided that such accountants may
also state that the audit was not directed primarily toward obtaining
knowledge of such noncompliance), or, if such accountants shall have obtained
knowledge of any such noncompliance, they shall disclose in such statement any
such noncompliance; provided that such accountants shall not be liable to the
Banks for failure to obtain knowledge of any such noncompliance;
(b) as soon as practicable, but in any event not later than
fifty (50) days after the end of the first three fiscal quarters of each
fiscal year of the Borrower, (i) the unaudited interim condensed consolidated
balance sheet of the Borrower as at the end of such fiscal quarter, and (ii)
the unaudited interim condensed consolidated statement of income and unaudited
interim condensed consolidated statement of cash flow of the Borrower for such
fiscal quarter and for the portion of the Borrower's fiscal year then elapsed,
all in reasonable detail and prepared in accordance with Rule 10-01 of
Regulation S-X of the Securities and Exchange Commission, together with a
certification by the principal financial or accounting officer of the Borrower
that, in the opinion of management of the Borrower, all adjustments necessary
for a fair presentation
43
of (A) the results of operations of the Borrower for the periods covered
thereby, (B) the financial position of the Borrower at the date thereof, and
(C) the cash flows of the Borrower for periods covered thereby have been made
(subject to year-end adjustments);
(c) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement certified
by the principal financial officer, treasurer or general counsel of the
Borrower in substantially the form of Exhibit K hereto and setting forth in
reasonable detail computations evidencing compliance with the covenants
contained in Section 8 and (if applicable) reconciliations to reflect changes
in GAAP since December 31, 1998;
(d) promptly after the filing or mailing thereof, copies of
all material filed with the Securities and Exchange Commission or sent to the
holders of the Equity Securities of the Borrower; and
(e) from time to time such other financial data and
information (including accountants' management letters) as the Administrative
Agent (having been requested to do so by any Bank) may reasonably request;
provided, however, that each of the Administrative Agent and the Banks agrees
that with respect to any data and information obtained by it as a result of
any request pursuant to this clause (e) (and with respect to any other data
and information that is by the terms of this Credit Agreement to be held
subject to this Section 6.4(e)), to the extent that such data and information
has not theretofore otherwise been disclosed in such a manner as to render
such data and information no longer confidential, each of the Administrative
Agent and the Banks will use its reasonable efforts (consistent with its
established procedures) to reasonably maintain (and cause its employees and
officers to maintain) the confidential nature of the data and information
therein contained; provided, however, that anything herein contained to the
contrary notwithstanding, each of the Administrative Agent and the Banks may,
to the extent necessary, disclose or disseminate such data and information to:
(i) its employees, Affiliates, directors, agents, attorneys, accountants,
auditors, and other professional advisers who would ordinarily have access to
such data and information in the normal course of the performance of their
duties in accordance with the Administrative Agent's or such Bank's customary
procedures relating to confidential information; (ii) such third parties as it
may, in its discretion, deem reasonably necessary or desirable (A) in
connection with or in response to any Government Mandate or request of any
Government Authority, or (B) in connection with any Proceeding pending (or on
its face purported to be pending) before any Government Authority (including
Proceedings involving the Borrower); (iii) any prospective purchaser,
participant or investment banker in connection with the resale or proposed
resale of any portion of the Loans, or of a participation therein, who shall
agree in writing to accept such information subject to the provisions of this
clause (e); (iv) any Person holding the Equity Securities or Funded Debt of
the Administrative Agent or such Bank who, subject to the provisions of this
clause (e), shall have requested to inspect such information; and (v) any
Entity utilizing such information to rate or classify the Equity Securities or
Funded Debt of the Administrative Agent or such Bank or to report to the
public concerning the industry of which the Administrative Agent or such Bank
is a part; provided, however, that none of the Administrative Agent and the
Banks shall be liable to the Borrower or any other Person for damages arising
hereunder from the disclosure of non-
44
public information despite its reasonable efforts in accordance with the
provisions of this clause (e) or from a failure by any other party to perform
and observe its covenants in this clause (e).
6.5 Notices.
6.5.1 Defaults.
The Borrower will promptly after the executive management of
the Borrower (which for purposes of this covenant shall mean the chairman of
the board, president, principal financial officer, treasurer or general
counsel of the Borrower) becomes aware thereof (and in any case within three
(3) Business Days after the executive management becomes aware thereof) notify
the Administrative Agent and each of the Banks in writing of the occurrence of
any Default or Event of Default. If any Person shall give any notice in
writing of a claimed default (whether or not constituting an Event of Default)
under the Loan Documents or any other Contract relating to Funded Debt equal
to or in excess of $50,000,000 to which or with respect to which the Borrower
or any of its Subsidiaries is a party or obligor (including, without
limitation, under the Existing Credit Agreement), whether as principal,
guarantor, surety, or otherwise, the Borrower shall forthwith give written
notice thereof to the Administrative Agent and each of the Banks, describing
the notice or action and the nature of the claimed default.
6.5.2 Environmental Events.
The Borrower will promptly give notice to the Administrative
Agent and each of the Banks (a) of any violation of any Environmental Law that
the Borrower or any of its Subsidiaries reports in writing, or that is
reportable by any such Person in writing (or for which any written report
supplemental to any oral report is made) to any Government Authority, and (b)
upon becoming aware thereof, of any Proceeding, including a notice from any
Government Authority of potential environmental liability, that has the
potential, in the Borrower's reasonable judgment, to have a Material Effect.
6.5.3 Notice of Proceedings and Judgments.
The Borrower will give notice to the Administrative Agent
and each of the Banks in writing within ten (10) Business Days of the
executive management of the Borrower (as defined in Section 6.5.1) becoming
aware of any Proceedings pending affecting the Borrower or any of its
Subsidiaries or to which the Borrower or any of its Subsidiaries is or becomes
a party that could reasonably be expected by the Borrower to have a Material
Effect (or of any material adverse change in any such Proceedings of which the
Borrower has previously given notice). Any such notice will state the nature
and status of such Proceedings. The Borrower will give notice to the
Administrative Agent and each of the Banks, in writing, in form and detail
satisfactory to the Administrative Agent, within ten (10) Business Days of any
settlement or any judgment, final or otherwise, against the Borrower or any of
its Subsidiaries where the amount payable by the Borrower or any of its
Subsidiaries, after giving effect to insurance, is in excess of the lesser of
$30,000,000 or 10% of Consolidated Net Worth as at the end of the most recent
fiscal quarter.
45
6.5.4 Notice of Change of Control.
In the event the Borrower obtains knowledge of a Change of
Control or an impending Change of Control, the Borrower will promptly give
written notice (a "Borrower Control Change Notice") of such fact to the
Administrative Agent and the Banks at least forty (40) days prior to the
proposed Change of Control Date; provided, however, that in no event shall
such a Borrower Control Change Notice be delivered to the Administrative Agent
and the Banks more than three (3) Business Days after the Change of Control
Date. Without limiting the foregoing, upon obtaining actual knowledge of any
Change of Control or impending Change of Control, any of the Administrative
Agent and the Banks may (but in no case shall any of them be obligated to)
deliver written notice to the Borrower of such event, indicating that such
event requires the Borrower to prepay the Loans pursuant to Section 3.2.2 (and
in any such notice a Bank may make demand for payment of its Loans under
Section 3.2.2). Promptly upon receipt of such notice, but in no event later
than five (5) Business Days after actual receipt thereof, the Borrower will
give written notice (such notice, together with a Borrower Control Change
Notice, a "Control Change Notice") of such fact to the Administrative Agent
and the Banks (including the Bank that has so notified the Borrower). Any
Control Change Notice shall (a) describe the principal facts and circumstances
of such Change of Control known to the Borrower in reasonable detail
(including the Change of Control Date or, if the Borrower does not have
knowledge of the Change of Control Date, the Borrower's best estimate of such
Change of Control Date), (b) make reference to Section 3.2.2 and the rights of
the Banks to require the Borrower to prepay the Loans on the terms and
conditions provided for therein, and (c) state that each Bank may make a
demand for payment of its Loans by providing written notice to the Borrower
within fifteen (15) days after the effective date of such Control Change
Notice. In the event the Borrower shall not have designated the Change of
Control Date in its Control Change Notice, the Borrower shall keep the
Administrative Agent and the Banks informed as to any changes in the estimated
Change of Control Date and shall provide written notice to the Administrative
Agent and the Banks specifying the Change of Control Date promptly upon
obtaining knowledge thereof.
6.6 Existence; Business; Properties.
6.6.1 Legal Existence.
The Borrower will, and will cause each of its Consolidated
Subsidiaries to, do or cause to be done all things necessary to preserve and
keep in full force and effect its existence, rights and franchises as a
limited partnership, general partnership or corporation, as the case may be,
except, with respect to rights and franchises, where the failure to preserve
and keep in full force and effect such rights and franchises would not be
likely to have a Material Effect, provided, however, this section shall not
prohibit any merger, consolidation, or reorganization of the Borrower or any
of its Subsidiaries permitted pursuant to Section 7.2.
46
6.6.2 Conduct of Business.
Except as otherwise disclosed to the Administrative Agent
and the Banks in the Borrower's Form 8-Ks for the period prior to the Closing
Date, the Borrower will, and will cause each of its Consolidated Subsidiaries
to, engage in a diversified investment management business.
6.6.3 Maintenance of Properties.
The Borrower will, and will cause each of its Consolidated
Subsidiaries to, cause its properties used or useful in the conduct of its
business and which are material to the Business of the Borrower and its
Consolidated Subsidiaries taken as a whole to be maintained and kept in good
condition, repair, and working order and supplied with all necessary
equipment, ordinary wear and tear excepted; provided that nothing in this
Section 6.6.3 shall prevent the Borrower or any of its Consolidated
Subsidiaries from discontinuing the operation and maintenance of any
properties if such discontinuance (i) is, in the judgment of the Borrower or
such Subsidiary, desirable in the conduct of its business, and (ii) does not
have a Material Effect.
6.6.4 Status Under Securities Laws.
The Borrower shall maintain its status as a registered
"investment adviser", under (a) the Investment Advisers Act of 1940 and (b)
under the laws of each state in which such registration is required in
connection with the investment advisory business of the Borrower and, as to
(b) only, where a failure to obtain such registration would be likely to have
a Material Effect. The Borrower shall cause Alliance Distributors to maintain
its status as a registered "broker/dealer" under the Securities Exchange Act
of 1934 and under the laws of each state in which such registration is
required in connection with the business of Alliance Distributors and where a
failure to obtain such registration would be likely to have a Material Effect,
and to maintain its membership in the National Association of Securities
Dealers, Inc.
6.7 Insurance.
The Borrower will, and will cause each of its Consolidated
Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business against such casualties
and contingencies, in such amounts, containing such terms, in such forms, and
for such periods, or shall be self-insured in respect of such risks (with
appropriate reserves to the extent required by GAAP), as shall be customary in
the industry for companies engaged in similar activities in similar geographic
areas.
6.8 Taxes.
The Borrower will, and will cause each of its Consolidated
Subsidiaries to, duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, all taxes, assessments, and other
governmental charges imposed upon it or its real property, sales, and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for
47
labor, materials, or supplies that if unpaid (a) might by law become a Lien
upon any of its property and (b) would be reasonably likely to result in a
Material Effect; provided that any such tax, assessment, charge, levy, or
claim need not be paid if the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings and if the Borrower or such
Subsidiary shall have set aside on its books, if and to the extent permitted
by GAAP, adequate accruals with respect thereto.
6.9 Inspection of Properties and Books, Etc.
6.9.1 General.
The Borrower shall, and shall cause each of its Subsidiaries
to, permit the Banks, through the Administrative Agent or any of the Banks'
other designated representatives, to visit and inspect any of the properties
of the Borrower or any of its Subsidiaries, to examine the books of account of
the Borrower and its Subsidiaries (and to make copies thereof and extracts
therefrom), and to discuss the affairs, finances, and accounts of the Borrower
and its Subsidiaries with, and to be advised as to the same by, its and their
officers, all at such reasonable times and intervals as the Administrative
Agent or any Bank may request. The costs incurred by the Administrative Agent
and the Banks in connection with any such inspection shall be borne by the
Banks making or requesting the inspection (or, if the Administrative Agent
makes an inspection on its own initiative after notice to the Banks, by the
Banks jointly, on a pro rata basis according to their outstanding Loans or, if
no Loans are outstanding, their respective Commitments), except as otherwise
provided by Section 14(f). Any data and information that is obtained by the
Administrative Agent or any Bank pursuant to this Section 6.9.1 shall be held
subject to Section 6.4(e).
6.9.2 Communication with Accountants.
The Borrower authorizes the Administrative Agent and, if
accompanied by the Administrative Agent, the Banks to communicate directly
with the Borrower's independent certified public accountants and authorizes
such accountants to disclose to the Administrative Agent and the Banks any and
all financial statements and other supporting financial documents and
schedules, including copies of any management letter with respect to the
Business of the Borrower or any of its Subsidiaries. The Borrower shall be
entitled to reasonable prior notice of any such meeting with its independent
certified public accountants and shall have the opportunity to have its
representatives present at any such meeting. At the request of the
Administrative Agent, the Borrower shall deliver a letter addressed to such
accountants instructing them to comply with the provisions of this Section
6.9.2. Any data and information that is obtained by the Administrative Agent
or any Bank pursuant to this Section 6.9.2 shall be held subject to Section
6.4(e).
6.10 Compliance with Government Mandates, Contracts, and Permits.
The Borrower will and will cause each of its Consolidated
Subsidiaries to, comply (if and to the extent that a failure to comply would
be likely to have a Material Effect) with (a) all applicable Government
Mandates wherever the business of the Borrower or
48
any such Subsidiary is conducted, including all Environmental Laws and all
Government Mandates relating to occupational safety and employment matters;
(b) the provisions of the certificate of incorporation and by-laws, or the
agreement of limited partnership and certificate of limited partnership, or
its governing documents in the case of any general partnership, as the case
may be, of the Borrower and such Subsidiary; (c) all Contracts to which the
Borrower or any such Subsidiary is party, by which the Borrower or any such
Subsidiary is or may be bound, or to which any of their respective properties
are or may be subject; and (d) the terms and conditions of any Permit used in
the Business of the Borrower or any such Subsidiary. If any Permit shall
become necessary or required in order that the Borrower may fulfill any of its
obligations hereunder or under any of the other Loan Documents to which the
Borrower is a party, the Borrower will immediately take or cause its
Subsidiaries to take all reasonable steps within the power of the Borrower and
its Subsidiaries to obtain and maintain in full force and effect such Permit
and furnish the Administrative Agent and the Banks with evidence thereof.
6.11 Use of Proceeds.
The Borrower will use the proceeds of the Loans solely as provided in
Section 5.16.
6.12 Restricted Subsidiaries.
The Borrower shall cause each Restricted Subsidiary to continue at
all times to satisfy the qualifications of a Restricted Subsidiary as set
forth in the definition of "Restricted Subsidiary" in Section 1.1.
6.13 Certain Changes in Accounting Principles.
In the event of a change after the date of this Credit Agreement in
(a) GAAP (as in effect from time to time, rather than as defined in Section
1.1) or (b) any regulation issued by the Securities and Exchange Commission
(either such event being referred to herein as an "Accounting Change"), that
results in a material change in the calculations as to compliance with any
financial covenant contained in Section 8 or in the calculation of any item to
be taken into account in the calculations as to compliance with any such
covenant (the "Affected Computation") in such a manner and to such an extent
that, in the good faith judgment of the Chief Financial Officer of the
Borrower or the Majority Banks, as evidenced by notice from such Majority
Banks to the Borrower and the Administrative Agent (the "Accounting Notice"),
the application of the Accounting Change to the Affected Computation would no
longer reflect the intention of the parties to this Credit Agreement, then and
in any such event:
(a) the Borrower shall, promptly after either a
determination by its Chief Financial Officer as provided above or receipt of
an Accounting Notice, give written notice thereof to the Administrative Agent
and each Bank, which notice shall be accompanied by a copy of any Accounting
Notice and a certificate of the Chief Financial Officer of the Borrower:
49
(i) describing the Accounting Change in question
and the particular covenant or covenants that will be affected by
such Accounting Change;
(ii) setting forth in reasonable detail (including
detailed calculations) the manner and extent to which the covenant or
covenants listed in such certificate are affected by such Accounting
Change; and
(iii) setting forth in reasonable detail (including
detailed calculations) the information required in order to establish
that the Borrower would be in compliance with the requirements of the
covenant or covenants listed in such certificate if such Accounting
Change was not effective (or, if the Borrower would not be so in
compliance, setting forth in reasonable detail calculations of the
extent of such non-compliance);
(b) the Borrower and the Banks will enter into good faith
negotiations with each other for an equitable amendment of such covenant or
covenants, and the definition of GAAP set forth in Section 1.1, pursuant to
Section 24 so as to place the parties, insofar as possible, in the same
relative position as if such Accounting Change had not occurred;
(c) for the period from the date on which such Accounting
Change becomes effective (the "Effective Date") to the effective date of an
amendment to this Credit Agreement pursuant to Section 24, the Borrower shall
be deemed to be in compliance with the covenant or covenants listed in such
certificate if and so long as (but only if and so long as) the Borrower would
be in compliance with such covenant or covenants if such Accounting Change had
not occurred; and
(d) if no amendment to this Credit Agreement has become
effective within ninety (90) days after the Effective Date of such Accounting
Change, then all accounting computations required to be made for purposes of
this Credit Agreement thereafter shall be made in accordance with GAAP as in
effect immediately prior to such Effective Date.
7.0 CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any Bank has any obligation to make any Loans:
7.1 Disposition of Assets.
The Borrower will not, and will not cause, permit, or suffer any of
its Consolidated Subsidiaries to, in any single transaction or in multiple
transactions within any fiscal year of the Borrower, sell, transfer, assign,
or otherwise dispose of all of the business or assets of the Borrower and its
Consolidated Subsidiaries, any Significant Assets, or any 12b-1 Fees, or enter
into any Contract for any such sale, transfer, assignment, or disposition,
provided, however:
(a) Subsidiaries of the Borrower may sell, transfer, assign,
or dispose of assets (including 12b-1 Fees) to the Borrower;
50
(b) Subsidiaries of the Borrower may sell, transfer, assign,
or dispose of assets (including 12b-1 Fees) to any Restricted Subsidiary;
(c) the Borrower may sell, transfer, assign, or dispose of
assets (including 12b-1 Fees) to any Restricted Subsidiary, provided such
Restricted Subsidiary shall have prior to the effective date of such sale,
transfer, assignment, or disposition executed and delivered to the
Administrative Agent an Assumption Agreement (and all of the conditions set
forth in such Assumption Agreement shall have been satisfied and such
Assumption Agreement (A) shall not be subject to any default or event of
default with respect to any party, (B) shall not be subject to any notice of
termination given or received by the Borrower or any of its Subsidiaries, and
(C) shall be the legal, valid, and binding obligation of each party thereto
enforceable against such party according to its terms);
(d) the Borrower and any Subsidiary of the Borrower may
sell, transfer or assign, or dispose of 12b-1 Fees to Persons other than the
Borrower and Restricted Subsidiaries. Any Indebtedness in respect of
obligations of the Borrower and its Subsidiaries arising out of such
transactions shall constitute "Funded Debt"; and
(e) the sale, transfer, assignment or other disposition of
all or substantially all of the business or assets of the Borrower and its
Consolidated Subsidiaries in connection with a transaction permitted under
Section 7.2 shall not be subject to the provisions of this Section 7.1.
This covenant is not intended to restrict the conversion of a
short-term investment of the Borrower into cash or into another investment
which remains an asset of the Borrower.
7.2 Mergers and Reorganizations.
The Borrower will not, and will not cause, permit, or suffer any of
its Consolidated Subsidiaries to, become a party to any merger, consolidation,
or reorganization (any such transaction, a "Reorganization" and the term
"Reorganize" shall have a correlative meaning) or enter into any Contract
providing for any Reorganization, provided, however:
(a) the Borrower may Reorganize solely with any Restricted
Subsidiary, and any Restricted Subsidiary may Reorganize solely with the
Borrower or any other Restricted Subsidiary, provided (i) if the Borrower is
party to such Reorganization, it is the sole surviving Entity, and (ii) if a
Restricted Subsidiary that has previously executed and delivered to the
Administrative Agent an Assumption Agreement is party to such Reorganization,
each Entity (other than the Borrower or a Restricted Subsidiary that has
previously executed and delivered to the Administrative Agent an Assumption
Agreement) surviving such Reorganization shall execute and deliver to the
Administrative Agent an Assumption Agreement (and all of the conditions set
forth in such Assumption Agreement shall have been satisfied and such
Assumption Agreement (x) shall not be subject to any default or event of
default with respect to any party, (y) shall not be subject to any notice of
termination given or received by the Borrower
51
or any of its Subsidiaries, and (z) shall be the legal, valid, and binding
obligation of each party thereto enforceable against such party according to
its terms);
(b) the Borrower may Reorganize with other Entities in
connection with any Permitted Acquisition, provided (i) the Borrower is the
sole surviving Entity of such Reorganization; (ii) no Default or Event of
Default, or breach by the Borrower of any of its covenants in the Loan
Documents, shall have occurred and be continuing at the time of such
Reorganization; (iii) no Default or Event of Default, or breach by the
Borrower of any of its covenants in the Loan Documents, shall occur as a
result of, or after giving effect to, such Reorganization; and (iv) such
Reorganization does not result in a Change of Control;
(c) the Borrower may Reorganize with any other Entity
(including Reorganizations in connection with a conversion of the Borrower to
corporate form and other transactions permitted under Section 2.6 of the
Borrower Partnership Agreement), provided:
(i) no Default or Event of Default shall have
occurred and be continuing at the time of such Reorganization;
(ii) no Default or Event of Default shall occur as
a result of, or after giving effect to, such Reorganization;
(iii) each surviving Entity (other than the
Borrower if it survives), and each Person that in connection with
such Reorganization acquires or succeeds to any of the business or
assets of the Borrower shall, as a condition of the effectiveness of
such Reorganization, execute and deliver to the Administrative Agent
an Assumption Agreement in the form of Exhibit A-1 to this Credit
Agreement (and all of the conditions set forth in such Assumption
Agreement shall have been satisfied and such Assumption Agreement (A)
shall not be subject to any default or event of default with respect
to any party, (B) shall not be subject to any notice of termination
given or received by the Borrower or any of its Subsidiaries, and (C)
shall be the legal, valid, and binding obligation of each party
thereto enforceable against such party according to its terms).
Notwithstanding the foregoing, Persons that in connection with such
Reorganization in the aggregate acquire or succeed to assets
generating less than twenty percent (20%) of the consolidated
revenues of the Borrower and the Consolidated Subsidiaries during the
four (4) fiscal quarters of the Borrower most recently ended shall
not be required to enter into an Assumption Agreement as provided
above in this clause (iii) in connection with such Reorganization so
long as each surviving Entity (other than the Borrower if it
survives) and Persons that in connection with such Reorganization in
the aggregate acquire or succeed to assets generating not less than
$400,000,000 of consolidated revenues of the Borrower and the
Consolidated Subsidiaries during the four (4) fiscal quarters of the
Borrower most recently ended shall, as a condition to the
effectiveness of such Reorganization, execute and deliver to the
Administrative Agent an Assumption Agreement and the other conditions
specified above with respect to such Assumption Agreement shall be
satisfied;
52
(iv) such Reorganization does not result in a Change
of Control;
(v) after giving effect to such Reorganization,
investment management contracts, together with agreements associated
with distribution revenues and shareholder servicing fees, with
respect to at least seventy-five percent (75%) of the consolidated
revenues, less "other revenues" (as such term is used in the
Borrower's consolidated statements of income as filed with the
Securities and Exchange Commission), of the Borrower and its
Consolidated Subsidiaries during the four (4) fiscal quarters most
recently ended prior to such Reorganization (A) shall remain in full
force and effect, and (B) shall, if held by the Borrower or one or
more of its Consolidated Subsidiaries prior to such Reorganization,
be held by the Borrower or one or more of its Consolidated
Subsidiaries or shall have been duly assigned to or otherwise held by
Persons executing and delivering to the Administrative Agent
Assumption Agreements pursuant to clause (iii) above or one or more
of any such Person's Consolidated Subsidiaries;
(vi) any diminution in the aggregate net worth of
the Borrower (if it survives) and any Persons executing and
delivering to the Administrative Agent Assumption Agreements pursuant
to clause (iii) above and the consolidated Subsidiaries of each
thereof (after elimination of intercompany items and without double
counting), when compared with the Consolidated Net Worth of the
Borrower as of the date of the most recently completed fiscal quarter
immediately prior to such Reorganization, is not more than twenty
percent (20%) of such Consolidated Net Worth; and
(vii) that the Borrower has given the
Administrative Agent and the Banks written notice of such
Reorganization at least ten (10) business days prior to such
Reorganization, which notice shall include current revised
projections with respect to the Borrower and its Subsidiaries
reflecting such Reorganization; and
(d) the Borrower may Reorganize with an Entity (the
"Successor Entity") through the transfer by the Borrower of substantially all
of the business and assets of the Borrower and its Consolidated Subsidiaries
to the Successor Entity and its Consolidated Subsidiaries, substantially as
contemplated by the Borrower's Current Report on Form 8-K dated April 8, 1999,
which Successor Entity shall succeed to all of the rights and obligations of
the Borrower under this Credit Agreement and any other Loan Documents, and the
Borrower shall be released from all such obligations, upon satisfaction of the
conditions set forth below, provided:
(i) no Default or Event of Default shall have
occurred and be continuing at the time of such Reorganization;
(ii) no Default or Event of Default shall occur as
a result of, or after giving effect to, such Reorganization;
(iii) the Successor Entity shall, as a condition of
the effectiveness of its assumption of the rights and obligations of
the Borrower hereunder and under any other
53
Loan Documents and of the release of the Borrower from its
obligations hereunder and under any other Loan Documents, execute and
deliver to the Administrative Agent an Assumption Agreement
substantially in the form of Exhibit A-2 to this Credit Agreement
(and all of the conditions set forth in such Assumption Agreement
shall have been satisfied and such Assumption Agreement (A) shall not
be subject to any default or event of default with respect to any
party, (B) shall not be subject to any notice of termination given or
received by the Borrower or any of its Subsidiaries, and (C) shall be
the legal, valid, and binding obligation of each party thereto
enforceable against such party according to its terms);
(iv) such Reorganization does not result in a
Change of Control;
(v) after giving effect to such Reorganization,
investment management contracts, together with agreements associated
with distribution revenues and shareholder servicing fees, with
respect to at least seventy-five percent (75%) of the consolidated
revenues, less "other revenues" (as such term is used in the
Borrower's consolidated statements of income as filed with the
Securities and Exchange Commission), of the Borrower and its
Consolidated Subsidiaries during the four (4) fiscal quarters most
recently ended prior to such Reorganization (A) shall remain in full
force and effect, and (B) shall have been duly assigned to or
otherwise held by the Successor Entity executing and delivering to
the Administrative Agent the Assumption Agreement pursuant to clause
(iii) above or one or more of its Consolidated Subsidiaries;
(vi) any diminution in the aggregate net worth of
the Successor Entity executing and delivering to the Administrative
Agent the Assumption Agreement pursuant to clause (iii) above and the
Consolidated Subsidiaries thereof (after elimination of intercompany
items and without double counting), when compared with the
Consolidated Net Worth of the Borrower as of the date of the most
recently completed fiscal quarter immediately prior to such
Reorganization, is not more than twenty (20%) of such Consolidated
Net Worth; and
(vii) that the Borrower has given the
Administrative Agent and the Banks written notice of such
Reorganization at least ten (10) business days prior to such
Reorganization.
The Banks hereby consent to the Reorganization permitted in
this Section 7.2 (d) and the related assignment, assumption and
release of the Borrower's obligations under this Credit Agreement and
any other Loan Documents, subject solely to the execution and
delivery of the Assumption Agreement substantially in the form of
Exhibit A-2 to this Credit Agreement and satisfaction of the
conditions set forth therein and above, without any action required
on the part of the Banks.
54
7.3 Acquisitions.
The Borrower will not, and will not cause, permit, or suffer any of
its Subsidiaries to, become a party to, contract for, or effect any purchase,
exchange, or acquisition of Equity Securities or assets (any such transaction,
an "Acquisition"), other than an Acquisition of assets that do not constitute
all or a material part of a business, provided, however, the Borrower or any
of its Subsidiaries may become a party to, contract for, or effect an
Acquisition if each of the following conditions are satisfied:
(a) no Default or Event of Default, or breach by the
Borrower of any of its covenants in the Loan Documents, shall have occurred
and be continuing at the time of such Acquisition;
(b) no Default or Event of Default, or breach by the
Borrower of any of its covenants in the Loan Documents, shall occur as a
result of, or after giving effect to, such Acquisition;
(c) such Acquisition relates solely to (i) Equity Securities
in another Person engaged primarily in, or assets of another Person used
primarily for, a diversified investment management business, (ii) goods or
services that will be used in the business of the Borrower or any of its
Subsidiaries, or (iii) additional Equity Securities issued by an Entity, the
Equity Securities of which have previously been purchased by the Borrower or
one of its Subsidiaries under this Section 7.3;
(d) if such Acquisition relates to Equity Securities of
another Entity, after giving effect to such Acquisition, at least a majority
of the Equity Securities, and at least a majority of the Voting Equity
Securities, of such Entity are held directly by the Borrower or indirectly by
the Borrower through one or more Restricted Subsidiaries (but not through any
Subsidiary that is not a Restricted Subsidiary);
(e) any Entity that issued Equity Securities purchased in
such Acquisition and any Entity through which the Borrower effected an
Acquisition of Equity Securities or assets, becomes, upon the consummation of
the Acquisition, a Consolidated Subsidiary subject to the terms and conditions
of this Credit Agreement; and
(f) except as permitted by Section 7.6, any Entity that
issued Equity Securities purchased in such Acquisition and any Entity through
which the Borrower effected an Acquisition of Equity Securities or assets is
not upon consummation of such Acquisition (and the Borrower will not
thereafter cause, permit, or suffer any such Entity to become) a general
partner in any partnership, a party to a joint venture, or subject to any
contingent obligations established by Contract that are not by their terms
limited to a specific dollar amount; provided, however, that any such Entity
may be a general partner in a partnership which is wholly owned by the
Borrower or its Restricted Subsidiaries.
55
7.4 Restrictions on Liens.
The Borrower will not, and will not cause, permit, or suffer any of
its Consolidated Subsidiaries to, (a) create or incur, or cause, permit, or
suffer to be created or incurred or to exist, any Lien upon any of its
property or assets of any character whether now owned or hereafter acquired,
or upon the income or profits therefrom; (b) transfer any of such property or
assets or the income or profits therefrom for the purpose of subjecting the
same to the payment of Indebtedness or performance of any other obligation in
priority to payment of its general creditors; (c) acquire, or agree or have an
option to acquire, any property or assets upon conditional sale or other title
retention or purchase money security agreement, device, or arrangement; (d)
suffer to exist any Indebtedness or claim or demand for a period of time such
that the same by Government Mandate or upon bankruptcy or insolvency, or
otherwise, would be given any priority whatsoever over its general creditors;
or (e) assign, pledge, or otherwise transfer any accounts, contract rights,
general intangibles, chattel paper, or instruments, with or without recourse,
other than a transfer or assignment in connection with a sale permitted under
Section 7.1 or Reorganization permitted under Section 7.2 or an Investment
permitted under Section 7.6; provided that the Borrower and any Subsidiary of
the Borrower may create or incur, or cause, permit, or suffer to be created or
incurred or to exist:
(i) Liens imposed by Government Mandate to secure
taxes, assessments, and other government charges in respect of
obligations not overdue;
(ii) statutory Liens of carriers, warehousemen,
mechanics, suppliers, laborers, and materialmen, and other like
Liens, in each case in respect of obligations not overdue;
(iii) pledges or deposits made in connection with,
or to secure payment of, workers' compensation, unemployment
insurance, old age pensions, or other social security obligations;
(iv) Liens on Real Estate consisting of easements,
rights of way, zoning restrictions, restrictions on the use of real
property, defects and irregularities in the title thereto, and other
minor Liens, provided, (A) none of such Liens in the reasonable
opinion of the Borrower interferes materially with the use of the
affected property in the ordinary conduct of the business of the
Borrower and its Subsidiaries, and (B) such Liens individually or in
the aggregate do not have a Material Effect;
(v) the rights and interests of landlords and
lessors under leases of Real Estate leased by the Borrower or one of
its Subsidiaries, as lessee;
(vi) Liens outstanding on the Closing Date and set
forth on Schedule 7.4;
56
(vii) Liens in favor of either the Borrower or a
Restricted Subsidiary on all or part of the assets of any Subsidiary
of the Borrower securing Indebtedness owing by such Subsidiary to the
Borrower or such Restricted Subsidiary, as the case may be;
(viii) Liens on interests of the Borrower or its
Subsidiaries in partnerships or joint ventures consisting of binding
rights of first refusal, rights of first offer, take-me-along rights,
third-party offer provisions, buy-sell provisions, other transfer
restrictions and conditions relating to such partnership or joint
venture interests, and Liens granted to other participants in such
partnership or joint venture as security for the performance by the
Borrower or its Subsidiaries of their obligations in respect of such
partnership or joint venture;
(ix) UCC notice filings in connection with
non-recourse sales of 12b-1 Fees (other than sales constituting a
collateral security device); and
(x) Liens (in addition to those specified in
clauses (i) through (ix) above) securing Indebtedness (other
than the Indebtedness arising in connection with the Existing Credit
Agreement) in an aggregate amount for the Borrower and all of its Consolidated
Subsidiaries taken together not in excess of $80,000,000 outstanding at any
point in time (but excluding from the amount of any such Indebtedness that
portion which is fully covered by insurance and as to which the insurance
company has acknowledged to the Administrative Agent its coverage obligation
in writing).
7.5 Guaranties.
The Borrower shall not, and shall not cause, permit, or suffer any of
its Consolidated Subsidiaries to, either (a) guaranty, endorse, accept, act as
surety for, or otherwise become liable in respect of, Indebtedness of (or
undertake to maintain working capital or other balance sheet condition of, or
otherwise to advance or make funds available for the purchase of Indebtedness
of) other Persons unless such obligation of the Borrower or its Subsidiary is
expressly limited by the instrument establishing the same to a specified
amount, or (b) voluntarily incur, create, assume, or otherwise become liable
for any contingent obligations that are not by their terms limited to a
specific dollar amount. This Section 7.5 shall not apply to (i) contingent
obligations of a Subsidiary of the Borrower that is not a Restricted
Subsidiary in its capacity as general partner of a partnership, or contingent
obligations of a Restricted Subsidiary in its capacity as a general partner of
a partnership which is wholly owned by the Borrower or its Restricted
Subsidiaries, or (ii) guaranties by the Borrower or any Consolidated
Subsidiary of obligations of Restricted Subsidiaries (other than obligations
in respect of Funded Debt) incurred in the ordinary course of business
(including, without limitation, guaranties incurred to comply with conditions
and requirements imposed by any applicable law, rule or regulation or
otherwise customary and appropriate to operate an investment management
business in any jurisdiction outside of the United States).
57
7.6 Restrictions on Investments.
The Borrower will not, and will not cause, permit, or suffer any of
its Consolidated Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except:
(a) Investments in marketable securities, liquid
investments, and other financial instruments that are acquired for investment
purposes and that have a value that may be readily established, including any
such Investment that may be readily sold or otherwise liquidated in any mutual
fund for which the Borrower or one of its Subsidiaries serves as investment
manager or adviser;
(b) Investments consisting of seed money contributions to
open-end and closed-end investment companies for which the Borrower or one of
its Subsidiaries serves as investment manager or adviser, provided in each
case the amount of such Investment will not exceed the minimum seed money
contribution required by the 1940 Act or other applicable law, regulation, or
custom (provided that when seed money contributions are made pursuant to
"custom", in no event shall the amount contributed to any single investment
company exceed $3,000,000);
(c) Investments existing as of the end of the calendar month
immediately preceding the Closing Date and set forth on Schedule 7.6;
(d) Investments made by the Borrower or any Restricted
Subsidiary in the Borrower or any Restricted Subsidiary;
(e) Investments made after the Closing Date in Consolidated
Subsidiaries that act as general partner of one or more partnerships in an
aggregate amount not to exceed $20,000,000 at any point in time;
(f) Investments consisting of inter-company advances made in
the ordinary course of business by the Borrower or any Subsidiary to any
Consolidated Subsidiary, provided each such advance is settled within
ninety-two (92) days after it is made (for purposes of this provision,
settlement shall mean repayment of an advance in full in cash and without
renewal of such advance, and without a substitute advance from the Borrower or
another Subsidiary, for at least twenty-four (24) hours after such cash
payment);
(g) Investments in connection with a Reorganization
permitted under Section 7.2 hereof; and
(h) Investments (in addition to those specified in clauses
(a) through (g) above) in an aggregate amount for the Borrower and all of its
Subsidiaries taken together not in excess of $150,000,000 outstanding at any
time.
Notwithstanding any provisions to the contrary in the definition of
"Investments" in Section 1.1, the Dollar amount of any Investment for purposes
of clauses (e) and (g) above shall
58
be reduced by the amount of any dividend, interest, or other return in respect
of such Investment that is actually received in cash by the Borrower or a
Restricted Subsidiary.
7.7 Restrictions on Funded Debt.
The Borrower will not cause, permit, or suffer any of the
Consolidated Subsidiaries to, create, incur, assume, guarantee, or be or
remain liable, contingently or otherwise, with respect to any Funded Debt,
provided, however, that (a) this covenant shall not apply to Funded Debt owing
solely to the Borrower or another Consolidated Subsidiary of the Borrower, and
(b) Consolidated Subsidiaries of the Borrower other than Alliance Capital
Management Corporation of Delaware and Alliance Distributors may, subject to
the other terms and conditions of the Loan Documents, create, incur, assume,
guarantee, or be or remain liable with respect to Funded Debt in an aggregate
principal amount (for all such Subsidiaries) that does not exceed fifteen
percent (15%) of the Borrower's Consolidated Net Worth, at any time during any
calendar year, as set forth in the most recently delivered annual or quarterly
report of the Borrower and (c) in addition to any Funded Debt which may be
incurred by Cursitor Alliance pursuant to clause (b) of this Section 7.7,
Cursitor Alliance may incur $5,375,000 of Funded Debt pursuant to Section
2.6(c) of the Cursitor Acquisition Agreement. Such $5,375,000 of Funded Debt
incurred by Cursitor Alliance pursuant to Section 2.6(c) of the Cursitor
Acquisition Agreement shall in no event be included in the calculation set
forth in clause (b) above.
7.8 Distributions.
The Borrower shall not cause, permit, or suffer any restriction or
Lien on the ability of any Consolidated Subsidiary to (a) pay, directly or
indirectly, any Distributions to the Borrower or any other Subsidiary of the
Borrower, (b) make any payments, directly or indirectly, in respect of any
Indebtedness or other obligation owed to the Borrower or any of its
Subsidiaries, (c) make loans or advances to the Borrower or any other
Subsidiary of the Borrower, or (d) sell, transfer, assign, or otherwise
dispose of any property or assets to the Borrower or any other Subsidiary of
the Borrower, except, in each such case, restrictions or Liens (aa) that exist
under or by reason of applicable Government Mandates, including any net
capital rules, (bb) that are imposed only, as to Indebtedness of the Borrower
or any Consolidated Subsidiary incurred prior to the date hereof, upon a
failure to pay when due any of such Indebtedness, or, as to Indebtedness of
the Borrower or any Consolidated Subsidiary incurred on or after the date
hereof, upon an acceleration of such Indebtedness or a failure to pay the full
amount of such Indebtedness at maturity, or (cc) that arise by reason of the
maintenance by any Subsidiary that is not a Restricted Subsidiary of a level
of net worth for the purpose of ensuring that limited partnerships for which
it serves as general partner will be treated as partnerships for federal
income tax purposes. Notwithstanding the foregoing, (i) any portion of net
earnings of any Restricted Subsidiary that is unavailable for payment of
dividends to the Borrower or any other Restricted Subsidiary by reason of a
restriction or Lien permitted under any of clauses (aa), (bb), and (cc) shall
be excluded from the calculation of Consolidated Net Income (or Loss), (ii)
Cursitor Alliance's agreement set forth in Section 12.02 of the Cursitor
Member Agreement, which prohibits the dissolution of Cursitor Alliance except
upon the unanimous vote of the Members (as defined in the Cursitor Member
Agreement) or such other events described in Section 12.02 of the Cursitor
Member Agreement,
59
is not prohibited under this Credit Agreement, and (iii) Cursitor Alliance's
agreement set forth in Section 5.01(a) of the Cursitor Member Agreement as in
effect on the date of this Credit Agreement, which relates to certain
potential priority payments to Cursitor Holdings, L.P. (and to other Persons
which are not Restricted Subsidiaries which become Members (as defined in the
Cursitor Member Agreement) after the date of the Cursitor Member Agreement),
is not prohibited under this Credit Agreement.
7.9 Transactions with Affiliates.
The Borrower will not, and will not cause, permit, or suffer any of
its Subsidiaries to, directly or indirectly, enter into any Contract or other
transaction with any Affiliate of the Borrower or any of its Subsidiaries that
is material to the Borrower and the Consolidated Subsidiaries taken as a
whole, unless either: (a) such Contract or transaction relates solely to
compensation arrangements with directors, officers, or employees of the
Borrower, the General Partner, or the Consolidated Subsidiaries, or (b) such
transaction is in the ordinary course of business and is, taking into account
the totality of the relationships involved, on fair and reasonable terms no
less favorable to the Borrower and the Consolidated Subsidiaries taken as a
whole than would be obtained in comparable arm's length transactions with
Persons that are not Affiliates of the Borrower or its Subsidiaries.
7.10 Fiscal Year.
The Borrower shall not change its fiscal year unless the parties to
the Loan Documents shall first enter into amendments to the Loan Documents
such that the rights of the parties to the Loan Documents will not be affected
by the change in the fiscal year of the Borrower, and the parties shall enter
into such amendments as may be required in connection with a change of the
Borrower's fiscal year.
7.11 Compliance with Environmental Laws.
The Borrower will not, and will not cause, permit, or suffer any of
its Subsidiaries to, (a) use any of the Real Estate or any portion thereof for
the handling, processing, storage, or disposal of Hazardous Substances, (b)
cause, permit, or suffer to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Hazardous
Substances, (c) generate any Hazardous Substances on any of the Real Estate,
(d) conduct any activity at any Real Estate or use any Real Estate in any
manner so as to cause a release (i.e., releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing, or dumping) or threatened release of Hazardous Substances on, upon,
or into the Real Estate, or (e) otherwise conduct any activity at any Real
Estate or use any Real Estate in any manner that would violate any
Environmental Law or bring such Real Estate in violation of any Environmental
Law, in each case, so as would be likely to have a Material Effect.
7.12 Employee Benefit Plans.
The Borrower will not, and will not cause, permit, or suffer any
ERISA Affiliate to:
60
(a) engage in any "prohibited transaction" within the
meaning of section 406 of ERISA or section 4975 of the Code that could result
in a material liability for the Borrower and its Consolidated Subsidiaries
taken as a whole;
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in section 302 of
ERISA, whether or not such deficiency is or may be waived;
(c) fail to contribute to any Guaranteed Pension Plan to an
extent that, or terminate any Guaranteed Pension Plan in a manner that, could
result in the imposition of a Lien on the assets of the Borrower or any of its
Subsidiaries pursuant to section 302(f) or section 4068 of ERISA; or
(d) permit or take any action that would result in the
aggregate benefit liabilities (within the meaning of section 4001 of ERISA) of
all Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans by more than $20,000,000, disregarding for this purpose the benefit
liabilities and assets of any such Plan with assets in excess of benefit
liabilities.
7.13 Amendments to Certain Documents.
The Borrower shall not, without the prior written consent of the
Administrative Agent in each instance, permit or suffer any material
amendments, modifications, supplements, or restatements of its certificate of
limited partnership or the Borrower Partnership Agreement (or, following any
conversion of the Borrower to a corporation, its certificate of incorporation
or by-laws) that (i) relate to the determination of Available Cash Flow or
Operating Cash Flow under the Borrower Partnership Agreement, or (ii) could
reasonably be expected to materially adversely affect the ability of the
Borrower to perform and observe its obligations under the Loan Documents or
the legal rights and remedies of the Banks and the Administrative Agent under
any of the Loan Documents.
8.0 FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any Bank has any obligation to make any Loans:
8.1 Ratio of Consolidated Adjusted Funded Debt to Consolidated
Adjusted Cash Flow.
(a) The Borrower will not at any time permit the ratio of
(i) the aggregate principal amount of Consolidated Adjusted Funded Debt at
such time to (ii) Consolidated Adjusted Cash Flow for the period of four (4)
consecutive fiscal quarters then (or most recently) ended to exceed 3.00 to
1.00.
61
(b) Consolidated Adjusted Funded Debt shall mean at any time
the sum of:
(i) the aggregate outstanding principal amount of
Funded Debt of the Borrower and the Consolidated Subsidiaries
(whether owed by more than one of them jointly or by any of them
singly) at such time determined on a consolidated basis in accordance
with GAAP; and
(ii) without duplication, the aggregate outstanding
principal amount of Funded Debt owed by the Borrower and the
Consolidated Subsidiaries (whether owed by more than one of them
jointly or by any of them singly) at such time to any Consolidated
Subsidiary that is not a Restricted Subsidiary.
(c) Consolidated Adjusted Cash Flow shall mean, with respect
to any fiscal period, the difference of:
(i) the sum of (A) EBITDA of the Borrower and the
Consolidated Subsidiaries for such fiscal period, plus (B) non-cash
charges of the Borrower and the Consolidated Subsidiaries (other than
charges for depreciation and amortization) for such fiscal period to
the extent deducted in determining Consolidated Net Income (or Loss)
for such period; minus
(ii) brokerage commissions paid in connection with
sales of "B" shares of investment companies and mutual funds managed
or advised by the Borrower or one of its Subsidiaries (net of
contingent deferred sales charges received in conjunction with
redemptions of such "B" shares).
8.2 Minimum Net Worth.
As of the last day of each calendar quarter, the Borrower shall not
permit its Consolidated Net Worth to be less than $330,000,000.
8.3 Miscellaneous.
(a) All capitalized terms that are used in this Section 8
without definition in this Credit Agreement shall refer to the corresponding
items in the financial statements of the Borrower (as such items were
determined for purposes of the financial statements referred to in this
Section 8.3).
(b) For purposes of this Section 8, demand obligations shall
be deemed to be due and payable during any fiscal year during which such
obligations are outstanding.
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9.0 CLOSING CONDITIONS.
The obligations of the Banks to enter into this Credit Agreement
shall be subject to the satisfaction of the following conditions precedent at
or before the Closing Date:
9.1 Financial Statements and Material Changes.
The Banks shall be reasonably satisfied that (a) the financial
statements of the Borrower and the Consolidated Subsidiaries referred to in
Section 5.4 fairly present in all material respects the business and financial
condition and the results of operations of the Borrower and the Consolidated
Subsidiaries as of the dates and for the periods to which such financial
statements relate, and (b) there shall have been no material adverse change in
the Business of the Borrower and the Consolidated Subsidiaries taken as a
whole since the dates of such financial statements.
9.2 Loan Documents.
Each of the Loan Documents shall have been duly executed and
delivered by the respective parties thereto and shall be in full force and
effect. Each Bank and the Administrative Agent shall have received a fully
executed copy of each such document.
9.3 Certified Copies of Charter Documents.
Each of the Banks and the Administrative Agent shall have received
from the Borrower and the General Partner (a) a copy of its certificate of
incorporation, certificate of limited partnership, or other charter document
duly certified as of a recent date by the Secretary of State of Delaware, (b)
a copy, certified by a duly authorized officer of such Entity to be true and
complete on the Closing Date, of its by-laws, agreement of limited
partnership, or equivalent document as in effect on such date, and (c) a
certificate of the Secretary of State of Delaware as to the due organization,
legal existence, and good standing of such Entity. The certificate of
incorporation and by-laws or partnership agreement and certificate of limited
partnership, as the case may be, of the Borrower, each of its Subsidiaries,
and the General Partner shall be in all respects satisfactory in form and
substance to the Banks and the Administrative Agent.
9.4 Partnership and Corporate Action.
All partnership action necessary for the valid execution, delivery,
and performance by the Borrower of this Credit Agreement and the other Loan
Documents to which it is or is to become a party, and all corporate action
necessary for the General Partner to cause the Borrower to execute, deliver,
and perform this Credit Agreement and the other Loan Documents to which the
Borrower is or is to become a party, shall have been duly and effectively
taken, evidence thereof reasonably satisfactory to the Banks and the
Administrative Agent shall have been provided to each of the Banks, and such
action shall be in full force and effect at the Closing Date.
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9.5 Consents.
Each party hereto shall have duly obtained all consents and approvals
of Government Authorities and other third parties, and shall have effected all
notices, filings, and registrations with Government Authorities and other
third parties, as may be required in connection with the execution, delivery,
performance, and observance of the Loan Documents; all of such consents,
approvals, notices, filings, and registrations shall be in full force and
effect; and the Banks and the Administrative Agent shall have each received
evidence thereof satisfactory to them.
9.6 Opinions of Counsel.
Each of the Banks and the Administrative Agent shall have received a
favorable opinion addressed to the Banks and the Administrative Agent, dated
as of the Closing Date, from Xxxxx & Xxxx LLP, counsel to the Borrower, in the
form of Exhibit M attached hereto.
9.7 Proceedings.
There shall be no Proceedings pending or threatened the result of
which is reasonably likely to impair or prevent the Borrower's performance and
observance of its obligations under this Credit Agreement and the other Loan
Documents.
9.8 Incumbency Certificate.
Each of the Banks and the Administrative Agent shall have received
from the Borrower an incumbency certificate, dated as of the Closing Date,
signed by a duly authorized officer of the Borrower and giving the name and
bearing a specimen signature of each individual who shall be authorized: (a)
to sign, in the name and on behalf of the Borrower, each of the Loan Documents
to which the Borrower is or is to become a party; (b) to make Loan Requests
and Conversion Requests; and (c) to give notices and to take other action on
behalf of the Borrower under the Loan Documents.
9.9 Fees.
The Borrower shall have paid to the Administrative Agent for the
accounts of the Banks all fees then payable.
9.10 Representations and Warranties True; No Defaults.
The Administrative Agent and the Banks shall have received a
certificate of an officer of the General Partner, in form and substance
satisfactory to the Administrative Agent and the Banks, to the effect that (i)
each of the representations and warranties set forth herein and each of the
other Loan Documents is true and correct in all material respects on and as of
the Closing Date, and (ii) no material defaults exist under any material
contract or agreement of the Borrower, including, without limitation, this
Credit Agreement and the other Loan Documents.
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9.11 Year 2000 Letter.
Each of the Banks and the Administrative Agent shall have received a
written summary from the Borrower concerning Borrower's approach in dealing
with the "Year 2000" problem as it relates to functions and systems involving
dates.
10.0 CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan, including the
Revolving Credit Loans and the Competitive Bid Rate Loans, whether on or after
the Closing Date, shall also be subject to the satisfaction of the conditions
precedent set forth below. Each of the submission of a Loan Request or a
Competitive Bid Rate Quote Request by the Borrower and the acceptance by the
Borrower of any Loan shall constitute a representation and warranty by the
Borrower that the conditions set forth below have been satisfied.
10.1 No Default.
No Default or Event of Default shall have occurred and be continuing.
10.2 Representations True.
Each of the representations and warranties of the Borrower and its
Subsidiaries contained in this Credit Agreement (other than the Borrower's
representation and warranty set forth in Section 5.5), the other Loan
Documents, or in any document or instrument delivered pursuant to or in
connection with this Credit Agreement shall be true and correct in all
material respects as of the time of the making of such Loan, with the same
effect as if made at and as of that time (except (a) to the extent that such
representations and warranties expressly relate to a prior date, in which case
they shall be true and correct in all material respects as of such earlier
date, and (b) to the extent of changes resulting from transactions
contemplated or permitted by this Credit Agreement and the other Loan
Documents and changes occurring in the ordinary course of business that singly
or in the aggregate are not materially adverse to the Borrower and its
Consolidated Subsidiaries taken as a whole).
10.3 Loan Request.
In the case of a Revolving Credit Loan, the Administrative Agent
shall have received a Loan Request as provided in Section 2.7. In the case of
a Competitive Bid Rate Loan, the Administrative Agent shall have received from
the Borrower its acceptance of the offers extended to the Borrower pursuant to
Section 2.11.6.
10.4 Payment of Fees.
Without limiting any other condition, the Borrower shall have paid to
the Administrative Agent, for the account of the Banks and the Administrative
Agent as appropriate, all fees and other amounts due and payable under the
Loan Documents at or prior to the time of the making of such Loan.
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10.5 No Legal Impediment.
No change shall have occurred in any Government Mandate that in the
reasonable opinion of any Bank would make it illegal for such Bank to make
such Loan (it being understood that this section shall be a condition only for
the Bank or Banks affected by such Government Mandate).
11.0 EVENTS OF DEFAULT; ACCELERATION; ETC.
11.1 Events of Default and Acceleration.
If any of the following events ("Events of Default" or, if the giving
of notice or the lapse of time or both is required, then, prior to such notice
or lapse of time, "Defaults") shall occur:
(a) the Borrower or any Other Obligor shall fail to pay any
principal of the Loans when the same shall become due and payable, whether at
the stated date of maturity or any accelerated date of maturity or at any
other date fixed for payment;
(b) the Borrower or any Other Obligor shall fail to pay any
interest on the Loans when the same shall become due and payable, whether at
the stated date of maturity or any accelerated date of maturity or at any
other date fixed for payment, and such failure shall continue for five (5)
days after written notice of such failure has been given to the Borrower (or
if the Borrower no longer exists, such other Obligor) by the Administrative
Agent;
(c) the Borrower or any Other Obligor shall fail to perform
or observe any of its covenants contained in Sections 6.5.1, 6.6.1, 7.1, 7.2,
7.3, 7.4(x), 7.13, 8, or, if such failure relates to a Lien securing Funded
Debt, 7.4;
(d) the Borrower, any Other Obligor, or any of their
respective Subsidiaries shall fail to perform or observe any term, covenant,
or agreement contained herein or in any of the other Loan Documents (other
than those specified elsewhere in this Section 11) for thirty (30) days after
written notice of such failure has been given to the Borrower (or if the
Borrower no longer exists, such Other Obligor) by the Administrative Agent,
provided, that a failure to perform or observe the terms, covenants and
agreements set forth in Section 6.4 or Section 6.5.3 that continues for more
than ten (10) days (regardless of whether notice of such failure is given to
the Borrower) shall constitute an Event of Default hereunder;
(e) any representation or warranty of the Borrower, any
Other Obligor, or any of their respective Subsidiaries in this Credit
Agreement, any of the other Loan Documents, or in any other document or
instrument delivered pursuant to or in connection with this Credit Agreement
shall prove to have been incorrect in any material respect upon the date when
made or deemed to have been made or repeated;
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(f) failure to make a payment of principal or interest, or a
default, event of default, or other event permitting (with or without the
passage of time or the giving of notice) acceleration or exercise of remedies
shall occur with respect to any (i) Indebtedness for money borrowed,
including, without limitation, Indebtedness under the Existing Credit
Agreement, (ii) Indebtedness in respect of the deferred purchase price of
goods or services, or (iii) Capitalized Lease, of the Borrower, any Other
Obligor, or any of their respective Subsidiaries, having a principal amount
(or, in the case of a Capitalized Lease, scheduled rental payments with a
discounted present value from the last day of the initial term to the date of
determination as determined in accordance with generally accepted accounting
principles) (A) in any one case, of $50,000,000 or more, or (B) in the
aggregate, of $150,000,000 or more, and such failure to make a payment of
principal or interest, or a default, event of default, or other event shall
continue for such period of time as would entitle the holder of such
Indebtedness or Capitalized Lease (with or without notice) to accelerate such
Indebtedness or terminate such Capitalized Lease;
(g) any of the Loan Documents shall be cancelled,
terminated, revoked, or rescinded otherwise than in accordance with the terms
thereof or with the express prior written agreement, consent, or approval of
the Banks, or any Proceeding to cancel, revoke, or rescind any of the Loan
Documents shall be commenced by or on behalf of the Borrower, any Other
Obligor, or any of their respective Subsidiaries party thereto, or any
Government Authority of competent jurisdiction shall make a determination
that, or issue a Government Mandate to the effect that, any material provision
of one or more of the Loan Documents is illegal, invalid, or unenforceable in
accordance with the terms thereof;
(h) the Borrower, any Other Obligor, Alliance Distributors,
the General Partner, or any Material Subsidiary shall make an assignment for
the benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator, or receiver of the Borrower, any Other Obligor, Alliance
Distributors, the General Partner or any Material Subsidiary or of any
substantial part of the assets of the Borrower, any Other Obligor, Alliance
Distributors, the General Partner, or any Material Subsidiary, or shall
commence any Proceeding relating to the Borrower, any Other Obligor, Alliance
Distributors, the General Partner, or any Material Subsidiary under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution, liquidation, or similar law of any jurisdiction, now or hereafter
in effect, or shall take any action to authorize or in furtherance of any of
the foregoing, or if any such petition or application shall be filed or any
such Proceeding shall be commenced against the Borrower, any Other Obligor,
Alliance Distributors, the General Partner, or any Material Subsidiary and any
of such parties shall indicate its approval thereof, consent thereto, or
acquiescence therein;
(i) either (i) an involuntary Proceeding relating to the
Borrower, any Other Obligor, Alliance Distributors, the General Partner, or
any Material Subsidiary under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution, liquidation, or similar law of
any jurisdiction, now or hereafter in effect is commenced and not dismissed or
vacated within sixty (60) days following entry thereof, or (ii) a decree or
order is entered appointing any trustee, custodian, liquidator, or receiver
described in (h) or adjudicating
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the Borrower, any Other Obligor, Alliance Distributors, the General Partner,
or any Material Subsidiary bankrupt or insolvent, or approving a petition in
any such Proceeding, or a decree or order for relief is entered in respect of
the Borrower, any Other Obligor, Alliance Distributors, the General Partner,
or any Material Subsidiary in an involuntary Proceeding under federal
bankruptcy laws as now or hereafter constituted;
(j) there shall remain in force, undischarged, unsatisfied,
and unstayed, for more than forty-five (45) days, any final judgment or order
against the Borrower, any Other Obligor, or any of their respective
Subsidiaries, that, with any other such outstanding final judgments or orders,
undischarged, against the Borrower, any Other Obligors, and their respective
Subsidiaries taken together exceeds in the aggregate $20,000,000;
(k) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall have
determined in their reasonable discretion that such event reasonably could be
expected to result in liability of the Borrower, any Other Obligor, or any of
their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in
an aggregate amount exceeding $20,000,000 and such event in the circumstances
occurring reasonably could constitute grounds for the termination of such
Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer such Guaranteed
Pension Plan; or a trustee shall have been appointed by the United States
District Court to administer such Guaranteed Pension Plan; or the PBGC shall
have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) any of the following: (i) the Borrower or (if required
to be so registered) any Other Obligor shall fail to be duly registered as an
"investment adviser" under the Investment Advisers Act of 1940; or (ii)
Alliance Distributors shall cease to be duly registered as a "broker/dealer"
under the Securities Exchange Act of 1934 or shall cease to be a member in
good standing of the National Association of Securities Dealers, Inc.;
(m) the Borrower, any Other Obligor, Alliance Distributors,
the General Partner, or any Material Subsidiary shall either (i) be indicted
for a federal or state crime and, in connection with such indictment,
Government Authorities shall seek to seize or attach, or seek a civil
forfeiture of, property of the Borrower, any Other Obligor, Alliance
Distributors, the General Partner, or one or more of such Material Subsidiary
having a fair market value in excess of $20,000,000, or (ii) be found guilty
of, or shall plead guilty, no contest, or nolo contendere to, any federal or
state crime, a punishment for which could include a fine, penalty, or
forfeiture of any assets of the Borrower, such Other Obligor, Alliance
Distributors, the General Partner, or such Material Subsidiary having in any
such case a fair market value in excess of $20,000,000; or
(n) Alliance Capital Management Corporation shall cease to
be the sole general partner of the Borrower, and such circumstance shall
continue for thirty (30) days after written notice of such circumstance has
been given to the Borrower (or, if the Borrower no longer exists, any Other
Obligor), provided, that the admission of additional Persons as (a) general
partner of the Borrower shall not constitute an Event of Default if, prior to
the admission
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of any such general partner, the Borrower delivers to the Banks (i) the
documentation with respect to such general partner that would be required
under Section 9.3 if such Person were a General Partner on the Closing Date,
(ii) an incumbency certificate for such general partner as required for the
Borrower pursuant to Section 9.8, and (c) an opinion from counsel reasonably
acceptable to the Banks, in form and substance reasonably satisfactory to the
Banks, as to such general partner's power and authority to act on behalf of
the Borrower as a general partner of the Borrower, and provided, further, that
a Reorganization of the Borrower pursuant to Section 7.2(c) as permitted under
Section 2.6 of the Borrower Partnership Agreement shall not constitute a
Default or an Event of Default under this clause(n);
then, and in any such event, so long as the same may be
continuing, the Administrative Agent, upon the request of the Majority Banks,
shall by notice in writing to the Borrower declare all amounts owing with
respect to this Credit Agreement, the Notes, and the other Loan Documents to
be, and they shall thereupon forthwith become, immediately due and payable
without presentment, demand, protest, or other notice of any kind, all of
which are hereby expressly waived by the Borrower; provided that in the event
of any Event of Default specified in Section 11.1(h) or Section 11.1(i), all
such amounts shall become immediately due and payable automatically and
without any requirement of notice from the Administrative Agent or any Bank;
and provided, further, that any such declaration may be rescinded by the
Majority Banks after the Events of Default leading to such declaration are
cured or waived.
11.2 Termination of Commitments.
If any one or more of the Events of Default specified in Section
11.1(h) or Section 11.1(i) shall occur, any unused portion of the Total
Commitment hereunder shall forthwith terminate and each of the Banks shall be
relieved of all obligations to make Loans to the Borrower. If any other Event
of Default shall have occurred and be continuing, or if on any Drawdown Date
the conditions precedent to the making of the Loans to be made on such
Drawdown Date are not satisfied, the Administrative Agent may with the consent
of the Majority Banks and, upon the request of the Majority Banks, shall, by
notice to the Borrower, terminate the unused portion of the Total Commitment
hereunder, and upon such notice being given such unused portion of the Total
Commitment hereunder shall terminate immediately and each of the Banks shall
be relieved of all further obligations to make Loans. If any such notice is
given to the Borrower, the Administrative Agent will forthwith furnish a copy
thereof to each of the Banks. No termination of the Total Commitment hereunder
shall relieve the Borrower of any of the Obligations or any of its existing
obligations to any of the Banks arising under other agreements or instruments.
11.3 Remedies.
(a) In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Administrative Agent
shall have accelerated the maturity of the Loans pursuant to Section 11.1,
each Bank, if owed any amount with respect to the Loans, may with the consent
of the Majority Banks but not otherwise, proceed to protect and enforce its
rights by any appropriate Proceeding, whether for the specific performance of
any covenant or agreement contained in this Credit Agreement and the other
Loan Documents or any instrument
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pursuant to which the Obligations to such Bank are evidenced, including as
permitted by applicable Government Mandate the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Bank.
(b) No remedy herein conferred upon any Bank or the
Administrative Agent or the holder of any Note is intended to be exclusive of
any other remedy, and each and every remedy shall be cumulative and shall be
in addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by any Government Mandate.
11.4 Application of Monies.
In the event that, during the continuance of any Default or Event of
Default, the Administrative Agent or any Bank, as the case may be, receives
any monies in connection with the enforcement of rights under the Loan
Documents, such monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Administrative Agent for or in respect of all costs,
expenses, disbursements, and losses that shall have been incurred or sustained
by the Administrative Agent in connection with the collection of such monies
by the Administrative Agent, for the exercise, protection, or enforcement by
the Administrative Agent of all or any of the rights, remedies, powers, and
privileges of the Administrative Agent under this Credit Agreement or any of
the other Loan Documents, or in support of any provision of adequate indemnity
to the Administrative Agent against any taxes or Liens that by Government
Mandate shall have, or may have, priority over the rights of the
Administrative Agent to such monies;
(b) Second, to all other Obligations in such order or
preference as the Majority Banks may determine; provided, however, that
distributions among Obligations owing to the Banks and the Administrative
Agent with respect to each type of Obligation such as interest, principal,
fees, and expenses, shall be made among the Banks and the Administrative Agent
pro rata according to the respective amounts thereof; and provided, further,
that the Administrative Agent may in its discretion make proper allowance to
take into account any Obligations not then due and payable; and
(c) Third, the excess, if any, shall be returned to the
Borrower or to such other Persons as are entitled thereto.
12.0 SETOFF.
Regardless of the adequacy of any collateral, during the continuance
of any Event of Default, any deposits or other sums credited by or due from
any of the Banks to the Borrower and any securities or other property of the
Borrower in the possession of such Bank may be applied to or set off by such
Bank against the payment of Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now
existing or
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hereafter arising, of the Borrower to such Bank. Each of the Banks agrees with
each other Bank that (a) if an amount to be set off is to be applied to
Indebtedness of the Borrower to such Bank, other than Indebtedness evidenced
by the Notes held by such Bank, such amount shall be applied ratably to such
other Indebtedness and to the Indebtedness evidenced by all such Notes held by
such Bank, and (b) if such Bank shall receive from the Borrower, whether by
voluntary payment, exercise of the right of setoff, counterclaim, cross
action, enforcement of the claim evidenced by the Notes held by such Bank by
Proceedings against the Borrower, by proof thereof in bankruptcy,
reorganization, liquidation, receivership, or similar Proceedings, or
otherwise, and shall retain and apply to the payment of the Notes held by such
Bank, any amount in excess of its ratable portion of the payments received by
all of the Banks with respect to the Notes held by all of the Banks (exclusive
of payments to be made for the account of less than all of the Banks as
provided in Sections 3.2.2, 4.8, and 4.9), such Bank will make such
disposition and arrangements with the other Banks with respect to such excess,
either by way of distribution, pro tanto assignment of claims, subrogation or
otherwise as shall result in each Bank receiving in respect of the Notes held
by it its proportionate payment as contemplated by this Credit Agreement;
provided that if all or any part of such excess payment is thereafter
recovered from such Bank, such disposition and arrangements shall be rescinded
and the amount restored to the extent of such recovery, but without interest.
13.0 THE ADMINISTRATIVE AGENT.
13.1 Authorization.
Each of the Banks hereby appoints Fleet to act as Administrative
Agent and hereby irrevocably authorizes the Administrative Agent to take such
action on behalf of each of the Banks and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related documents
delegated to the Administrative Agent, together with such powers as are
reasonably incident thereto, provided that no duties or responsibilities not
expressly assumed herein or therein shall be implied to have been assumed by
the Administrative Agent. The relationship between the Administrative Agent
and the Banks is and shall be that of agent and principal only, and nothing
contained in this Credit Agreement or any of the other Loan Documents shall be
construed to constitute the Administrative Agent as a trustee for any Bank.
13.2 Employees and Agents.
The Administrative Agent may exercise its powers and execute its
duties by or through employees or agents and shall be entitled to take, and to
rely on, advice of legal counsel concerning all matters pertaining to its
rights and duties under this Credit Agreement and the other Loan Documents.
The Administrative Agent may utilize the services of such Persons as the
Administrative Agent in its sole discretion may reasonably determine.
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13.3 No Liability.
Neither the Administrative Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of
any oversight or error of judgment whatsoever, except that the Administrative
Agent or such other Person, as the case may be, may be liable for losses due
to its willful misconduct or gross negligence.
13.4 No Representations.
The Administrative Agent shall not be responsible to the Banks or any
other Person for the due execution or validity or enforceability of this
Credit Agreement, the Notes, any of the other Loan Documents or any instrument
at any time constituting, or intended to constitute, collateral security for
the Notes, or for the sufficiency or value of any such collateral security or
for the validity, enforceability, or collectability of any such amounts owing
with respect to the Notes, or for any recitals or statements, warranties, or
representations made herein or in any of the other Loan Documents or in any
certificate or instrument hereafter furnished to it by or on behalf of the
Borrower, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants, or agreements herein or
in any instrument at any time constituting, or intended to constitute,
collateral security for the Notes or to inspect any of the properties, books,
or records of the Borrower or any of its Subsidiaries. The Administrative
Agent shall not be bound to ascertain whether any notice, consent, waiver, or
request delivered to it by the Borrower or any holder of any of the Notes
shall have been duly authorized or is true, accurate, and complete. The
Administrative Agent has not made nor does it now make any representations or
warranties, express or implied, nor does it assume any liability to the Banks,
with respect to the credit worthiness or financial conditions of the Borrower
or any of its Subsidiaries. Each Bank acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Bank, and
based upon such information and documents as it has deemed appropriate, made
its own credit analysis and decision to enter into this Credit Agreement. Each
Bank also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Bank and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Credit Agreement or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder.
13.5 Payments.
13.5.1 Payments to Administrative Agent.
A payment by the Borrower to the Administrative Agent
hereunder or under any of the other Loan Documents for the account of any Bank
shall constitute a payment to such Bank. The Administrative Agent shall
promptly distribute to each Bank such Bank's pro rata
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share of payments received by the Administrative Agent for the account of the
Banks except as otherwise expressly provided herein or in any of the other
Loan Documents.
13.5.2 Distribution by Administrative Agent.
If in the reasonable opinion of the Administrative Agent the
distribution of any amount received by it in such capacity hereunder, under
the Notes, or under any of the other Loan Documents might involve it in
liability, it may refrain from making distribution until its right to make the
same shall have been adjudicated by a court of competent jurisdiction. If any
Government Authority shall adjudge that any amount received and distributed by
the Administrative Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Administrative
Agent its proportionate share of the amount so adjudged to be repaid or shall
pay over the same in such manner and to such Persons as shall be determined by
such Government Authority.
13.5.3 Delinquent Banks.
Notwithstanding anything to the contrary contained in this
Credit Agreement or any of the other Loan Documents, any Bank that fails (a)
to make available to the Administrative Agent its pro rata share of any Loan,
or (b) to comply with the provisions of Section 12 with respect to making
dispositions and arrangements with the other Banks, where such Bank's share of
any payment received, whether by setoff or otherwise, is in excess of its pro
rata share of such payments due and payable to all of the Banks, in each case
as, when, and to the full extent required by the provisions of this Credit
Agreement, shall be deemed delinquent (a "Delinquent Bank") and shall be
deemed a Delinquent Bank until such time as such delinquency is satisfied. A
Delinquent Bank shall be deemed to have assigned any and all payments due to
it from the Borrower, whether on account of outstanding Loans, interest, fees,
or otherwise, to the remaining nondelinquent Banks for application to, and
reduction of, their respective pro rata shares of all outstanding Loans. The
Delinquent Bank hereby authorizes the Administrative Agent to distribute such
payments to the nondelinquent Banks in proportion to their respective pro rata
shares of all outstanding Loans. A Delinquent Bank shall be deemed to have
satisfied in full a delinquency when and if, as a result of application of the
assigned payments to all outstanding Loans of the non-delinquent Banks, the
Banks' respective pro rata shares of all outstanding Loans have returned to
those in effect immediately prior to such delinquency and without giving
effect to the nonpayment causing such delinquency.
13.6 Holders of Notes.
Subject to Section 17, the Administrative Agent may deem and treat
the payee of any Note as the absolute owner thereof for all purposes hereof
until it shall have been furnished in writing with a different name by such
payee or by a subsequent holder, assignee, or transferee.
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13.7 Indemnity.
The Banks ratably shall indemnify and hold harmless the
Administrative Agent and any of its directors, officers, employees or agents,
on demand, from and against any and all Proceedings (whether groundless or
otherwise), taxes, obligations, losses, damages, penalties, judgments, costs,
expenses (including any expenses for which the Administrative Agent has not
been reimbursed by the Borrower as required by Section 14), and liabilities of
every nature and character whatsoever that may be imposed on, incurred by or
asserted against the Administrative Agent in its capacity as such in any way
arising out of or related to this Credit Agreement, the Notes, any of the
other Loan Documents, or the transactions contemplated or evidenced hereby or
thereby, or any action taken or omitted to be taken by the Administrative
Agent hereunder or thereunder, except to the extent that any of the same are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have been directly caused by the Administrative Agent's willful
misconduct or gross negligence.
13.8 Administrative Agent, Syndication Agent and Documentation
Agent as Banks.
In its individual capacity, Fleet, The First National Bank of Chicago
and Banque Nationale de Paris shall have the same obligations and the same
rights, powers, and privileges in respect to its Commitment and the Loans made
by it, and as the holder of any of the Notes, as it would have were it not
also the Administrative Agent, Syndication Agent and Documentation Agent,
respectively.
13.9 Resignation.
The Administrative Agent may resign at any time by giving sixty (60)
days' prior written notice thereof to the Banks and the Borrower. Upon any
such resignation, the Majority Banks shall have the right to appoint a
successor Administrative Agent. Unless an Event of Default shall have occurred
and be continuing, such successor Administrative Agent shall be reasonably
acceptable to the Borrower. If no successor Administrative Agent shall have
been so appointed by the Majority Banks and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent's
giving of notice of resignation, then the retiring Administrative Agent may,
on behalf of the Banks, appoint a successor, which shall be a financial
institution having a rating of not less than A or its equivalent by Standard &
Poor's Ratings Services. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor, such successor shall thereupon
succeed to and become vested with all the rights, powers, privileges, and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation, the provisions of this Credit
Agreement and the other Loan Documents shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
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13.10 Notification of Defaults and Events of Default.
Upon learning of the existence of a Default or an Event of Default, a
Bank shall promptly notify the Administrative Agent thereof. Upon receipt of
any notice under this Section 13.11, the Administrative Agent shall promptly
notify the other Banks of the existence of such Default or Event of Default.
13.11 Notification of Certain Events.
(a) Unless otherwise provided by the Borrower in its notice to the
Administrative Agent and the Banks of its Reorganization as permitted under
Section 7.2(d) hereof, the Administrative Agent will notify the Banks of the
effective date of such Reorganization.
(b) The Administrative Agent will notify the Banks of any consent
it grants to the Borrower under Section 7.13 hereof.
13.12 Duties in the Case of Enforcement.
In case one of more Events of Default shall have occurred and be
continuing, and whether or not acceleration of the Obligations shall have
occurred, the Administrative Agent shall, if (a) so requested by the Majority
Banks and (b) the Banks have provided to the Administrative Agent such
additional indemnities and assurances against expenses and liabilities as the
Administrative Agent may reasonably request, proceed to enforce the provisions
of the Loan Documents and exercise all or any such other legal, equitable, and
other rights or remedies as it may have under the Loan Documents. The Majority
Banks may direct the Administrative Agent in writing as to the method and the
extent of any such action, the Banks hereby agreeing to indemnify and hold the
Administrative Agent harmless from all liabilities incurred in respect of all
actions taken or omitted in accordance with such directions, provided that the
Administrative Agent need not comply with any such direction to the extent
that the Administrative Agent reasonably believes the Administrative Agent's
compliance with such direction will expose the Administrative Agent to
personal liability or will be unlawful or commercially unreasonable in any
applicable jurisdiction.
13.13 Syndication Agent and Documentation Agent.
Neither the Syndication Agent nor the Documentation Agent shall have
any right, power, obligation, liability, responsibility or duty under this
Credit Agreement other than those applicable to all Banks as such. Without
limiting the foregoing, neither the Syndication Agent nor the Documentation
Agent shall have or be deemed to have a fiduciary relationship with any Bank.
Each Bank hereby makes the same acknowledgments with respect to the
Syndication Agent and the Documentation Agent as it makes with respect to the
Administrative Agent in Section 13.7.
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14. 0 EXPENSES.
The Borrower shall upon demand either, as the Banks or the
Administrative Agent may require and regardless of whether any Loans are made
hereunder, pay in the first instance or reimburse the Banks and the
Administrative Agent (to the extent that payments for the following items are
not made under the other provisions hereof) for (a) the reasonable
out-of-pocket costs of producing and reproducing this Credit Agreement, the
other Loan Documents, and the other agreements and instruments mentioned
herein, (b) reasonable out-of-pocket expenses incurred in connection with the
syndication of this facility, (c) any taxes (including any interest and
penalties in respect thereto) payable by the Administrative Agent or any of
the Banks (other than taxes based upon the Administrative Agent's or any
Bank's income or profits) on or with respect to the transactions contemplated
by this Credit Agreement, (d) the reasonable fees, expenses, and disbursements
of the Administrative Agent's special counsel incurred in connection with the
preparation, administration, or interpretation of the Loan Documents, the
other instruments mentioned herein, and the term sheet for the transactions
contemplated by this Credit Agreement, each closing hereunder, and amendments,
modifications, approvals, consents or waivers hereto or hereunder, provided
that the Borrower shall not be responsible to pay more than the amount of the
fees of the Administrative Agent's special counsel specified in that certain
Fee Letter, dated May 28, 1999, between the Administrative Agent and the
Borrower in connection with their preparation and initial closing of this
Credit Agreement and the other Loan Documents initially contemplated
hereunder, (e) the reasonable fees, expenses, and disbursements-of the
Administrative Agent incurred by the Administrative Agent in connection with
the preparation, administration, or interpretation of the Loan Documents and
other instruments mentioned herein, (f) all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and costs, which attorneys may be
employees of any Bank or the Administrative Agent, and reasonable consulting,
accounting, appraisal, investment banking, and similar professional fees and
charges) incurred by any Bank or the Administrative Agent in connection with
(i) the enforcement of or preservation of rights under any of the Loan
Documents against the Borrower or any of its Subsidiaries or the
administration thereof after the occurrence of a Default or Event of Default
and (ii) any Proceeding or dispute whether arising hereunder or otherwise, in
any way related to any Bank's or the Administrative Agent's relationship with
the Borrower or any of its Subsidiaries. The Borrower shall not be responsible
under clause (f) above for the fees and costs of more than one law firm in any
one jurisdiction with respect to any one Proceeding or set of related
Proceedings for the Administrative Agent and the Banks, unless any of the
Administrative Agent and the Banks shall have reasonably concluded that there
are legal defenses available to it that are different from or additional to
those available to the Borrower or there are other circumstances that in the
reasonable judgment of the Administrative Agent and the Banks make separate
counsel advisable. The covenants of this Section 14 shall survive payment or
satisfaction of all other Obligations.
15.0 INDEMNIFICATION.
The Borrower shall, regardless of whether any Loans are made
hereunder, indemnify and hold harmless the Administrative Agent and the Banks,
together with their respective shareholders, directors, agents, officers,
Subsidiaries, and Affiliates, from and against any and all
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damages, losses, settlement payments, obligations, liabilities, claims, causes
of action, and Proceedings, and reasonable costs and expenses in connection
therewith, incurred, suffered, sustained, or required to be paid by an
indemnified party by reason of or resulting, directly or indirectly, from the
transactions contemplated by the Loan Documents, including (a) any actual or
proposed use by the Borrower or any of its Subsidiaries of the proceeds of any
of the Loans, (b) the Borrower or any of its Subsidiaries entering into or
performing this Credit Agreement or any of the other Loan Documents, or (c)
with respect to the Borrower and its Subsidiaries and their respective
properties and assets, the violation of any Environmental Law, the presence,
disposal, escape, seepage, leakage, spillage, discharge, emission, release, or
threatened release of any Hazardous Substances or any Proceeding brought or
threatened with respect to any Hazardous Substances (including claims with
respect to wrongful death, personal injury, or damage to property), in each
case including the reasonable fees and disbursements of legal counsel and
reasonable allocated costs of internal legal counsel incurred in connection
with any such Proceeding, provided, however, the Borrower shall not be
obligated to indemnify any party for any damages, losses, settlement payments,
obligations, liabilities, claims, causes of action, Proceedings, costs, and
expenses that were caused directly by (i) the gross negligence or willful
misconduct of the indemnified party or (ii) any breach by any Bank of its
obligation to fund a Revolving Credit Loan pursuant to this Credit Agreement,
provided that the Borrower is not then in Default. In Proceedings, or the
preparation therefor, the indemnified parties shall be entitled to select
their legal counsel and, in addition to the foregoing indemnity, the Borrower
shall, promptly upon demand, pay in the first instance, or reimburse the
indemnified parties for, the reasonable fees and expenses of such legal
counsel. The Borrower shall not be responsible under this section for the fees
and costs of more than one law firm in any one jurisdiction for the Borrower
and the indemnified parties with respect to any one Proceeding or set of
related Proceedings, unless any indemnified party shall have reasonably
concluded that there are legal defenses available to it that are different
from or additional to those available to the Borrower or there are other
circumstances that in the reasonable judgment of the indemnified parties make
separate counsel advisable. If, and to the extent that the obligations of the
Borrower under this Section 15 are unenforceable for any reason, the Borrower
shall make the maximum contribution to the payment in satisfaction of such
obligations that is permissible under applicable law. The covenants contained
in this Section 15 shall survive payment or satisfaction in full of all other
Obligations.
16. 0 SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations, and warranties made
herein, in the Notes, in any of the other Loan Documents, or in any documents
or other papers delivered by or on behalf of the Borrower or any of its
Subsidiaries pursuant hereto shall be deemed to have been relied upon by the
Banks and the Administrative Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by
the Banks of the Loans, as herein contemplated, and shall continue in full
force and effect so long as any amount due under this Credit Agreement or the
Notes or any of the other Loan Documents remains outstanding or any Bank has
any obligation to make any Loans, and for such further time as may be
otherwise expressly specified in this Credit Agreement. All statements
contained in any certificate or other paper delivered to any Bank or the
Administrative Agent at any time by or on behalf of the
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Borrower or any of its Subsidiaries pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and
warranties by the Borrower or such Subsidiary hereunder.
17.0 ASSIGNMENT AND PARTICIPATION.
17.1 Conditions to Assignment by Banks.
Except as provided herein, each Bank may assign to one or more
Eligible Assignees all or a portion of its interests, rights, and obligations
under this Credit Agreement (including all or a portion of its Commitment
Percentage and Commitment and the same portion of the Loans at the time owing
to it) and the Notes held by it; provided that (a) each of the Administrative
Agent and, so long as no Event of Default has occurred and is continuing, the
Borrower shall have given its prior written consent to such assignment, which
consent will not be unreasonably withheld or delayed, (b) each such assignment
shall be of a constant, and not a varying, percentage of all the assigning
Bank's rights and obligations under this Credit Agreement, (c) each assignment
of less than all of the assigning Bank's rights and obligations under this
Credit Agreement, shall be in an amount equal to $10,000,000 or in integral
multiples of $1,000,000 in excess thereof, and (d) the parties to such
assignment shall execute and deliver to the Administrative Agent, for
recording in the Register (as hereinafter defined), an Assignment and
Acceptance, substantially in the form of Exhibit L hereto (an "Assignment and
Acceptance"), together with any Notes subject to such assignment. Upon such
execution, delivery, acceptance, and recording, from and after the effective
date specified in each Assignment and Acceptance, which effective date shall
be at least five (5) Business Days after the execution thereof, (i) the
assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a Bank
hereunder, and (ii) the assigning Bank shall, to the extent provided in such
assignment and upon payment to the Administrative Agent of the registration
fee referred to in Section 17.3, be released from its obligations under this
Credit Agreement.
17.2 Certain Representations and Warranties; Limitations;
Covenants.
By executing and delivering an Assignment and Acceptance, the parties
to the assignment thereunder confirm to and agree with each other and the
other parties hereto as follows: (a) other than the representation and
warranty that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim, the assigning Bank makes
no representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties, or representations
made in or in connection with this Credit Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency, or value of this
Credit Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto; (b) the assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower and its Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the performance or
observance by the Borrower and its Subsidiaries or any other Person primarily
or secondarily liable in respect of any of the Obligations or any of their
obligations under this
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Credit Agreement or any of the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (c) such assignee confirms that
it has received a copy of this Credit Agreement, together with copies of the
most recent financial statements referred to in Section 5.4 and Section 6.4
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (d) such assignee will, independently and without reliance upon
the assigning Bank, the Administrative Agent, or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Credit Agreement; (e) such assignee represents and warrants that it is an
Eligible Assignee; (f) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers under this Credit Agreement and the other Loan Documents
as are delegated to the Administrative Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto; (g) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Credit Agreement are required to be
performed by it as a Bank; and (h) such assignee represents and warrants that
it is legally authorized to enter into such Assignment and Acceptance.
17.3 Register.
The Administrative Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentage of, and principal amount of the Revolving Credit Loans owing to the
Banks from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Administrative Agent, and
the Banks may treat each Person whose name is recorded in the Register as a
Bank hereunder for all purposes of this Credit Agreement. The Register shall
be available for inspection by the Borrower and the Banks at any reasonable
time and from time to time upon reasonable prior notice. Upon each such
recordation, the assigning Bank agrees to pay to the Administrative Agent a
registration fee in the sum of $3,500.
17.4 New Notes.
Upon its receipt of an Assignment and Acceptance executed by the
parties to such assignment, together with each Note subject to such
assignment, the Administrative Agent shall (a) record the information
contained therein in the Register, and (b) give prompt notice thereof to the
Borrower and the Banks (other than the assigning Bank). Within five (5)
Business Days after receipt of such notice, the Borrower, at its own expense,
shall execute and deliver to the Administrative Agent, in exchange for each
surrendered Note, a new Note to the order of such Eligible Assignee in an
amount equal to the amount assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and, if the assigning Bank has retained some portion
of its obligations hereunder, a new Note to the order of the assigning Bank in
an amount equal to the amount retained by it hereunder. Such new Notes shall
provide that they are replacements for the surrendered Notes, shall be in an
aggregate principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such Assignment and
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Acceptance and shall otherwise be in substantially the form of the assigned
Notes. The surrendered Notes shall be cancelled and returned to the Borrower.
17.5 Participations.
Each Bank may sell participations to one or more banks or other
entities in all or a portion of such Bank's rights and obligations under this
Credit Agreement and the other Loan Documents; provided that (a) any such sale
or participation shall not affect the rights and duties of the selling Bank
hereunder to the Borrower, (b) the only rights granted to the participant
pursuant to such participation arrangements with respect to waivers,
amendments, or modifications of the Loan Documents shall be the rights to
approve waivers, amendments or modifications that require the unanimous
consent of the Banks pursuant to Section 24 and (c) such participation shall
be in a minimum amount of $1,000,000 or in integral multiples of $1,000,000 in
excess thereof. Each Bank shall, promptly upon request of the Borrower in each
instance, disclose to the Borrower the parties to which such Bank has granted
participations under this section unless such Bank is subject to a contractual
restriction not to do so.
17.6 Disclosure.
Any Bank may disclose information obtained by such Bank pursuant to
this Credit Agreement to assignees or participants and potential assignees or
participants hereunder subject to Section 6.4(e).
17.7 Assignee or Participant Affiliated with the Borrower.
If any assignee Bank is an Affiliate of the Borrower, then any such
assignee Bank shall have no right to vote as a Bank hereunder or under any of
the other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or other modifications to any of the Loan
Documents or for purposes of making requests to the Administrative Agent
pursuant to Section 11, and the determination of the Majority Banks shall for
all purposes of this Credit Agreement and the other Loan Documents be made
without regard to such assignee Bank's interest in any of the Loans. If any
Bank sells a participating interest in any of the Loans to a participant, and
such participant is the Borrower or an Affiliate of the Borrower, then such
transferor Bank shall promptly notify the Administrative Agent of the sale of
such participation. A transferor Bank shall have no right to vote as a Bank
hereunder or under any of the other Loan Documents for purposes of granting
consents or waivers or for purposes of agreeing to amendments or modifications
to any of the Loan Documents or for purposes of making requests to the
Administrative Agent pursuant to Section 11 to the extent that such
participation is beneficially owned by the Borrower or any Affiliate of the
Borrower, and the determination of the Majority Banks shall for all purposes
of this Credit Agreement and the other Loan Documents be made without regard
to the interest of such transferor Bank in the Loans to the extent of such
participation.
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17.8 Miscellaneous Assignment Provisions.
Any assigning Bank shall retain its rights to be indemnified pursuant
to Sections 4.6, 4.7, 4.9, 14, and 15 with respect to any claims or actions
arising prior to the date of the assignment. If any assignee Bank is not
incorporated under the laws of the United States of America or any state
thereof, it shall, prior to the date on which any interest or fees are payable
hereunder or under any of the other Loan Documents for its account, deliver to
the Borrower and the Administrative Agent certification as to its exemption
from deduction or withholding of any United States federal income taxes.
Anything contained in this Section 17 to the contrary notwithstanding, any
Bank may at any time pledge all or any portion of its interest and rights
under this Credit Agreement (including all or any portion of its Notes) to any
of the twelve Federal Reserve Banks organized under section 4 of the Federal
Reserve Act, 12 U.S.C. section 341. No such pledge or the enforcement thereof
shall release the pledgor Bank from its obligations hereunder or under any of
the other Loan Documents.
17.9 Assignment by Borrower.
Except in connection with a Reorganization permitted under Section
7.2, the Borrower shall not assign or transfer any of its rights or
obligations under any of the Loan Documents without the prior written consent
of each of the Banks.
18. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes shall be in writing and shall be delivered in
hand, mailed by United States registered or certified first class mail,
postage prepaid, sent by overnight courier, or sent by telegraph, telecopy,
telefax or telex and confirmed by delivery via courier or postal service,
addressed as follows:
(a) if to the Borrower, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (Telecopy Number (000) 000-0000), Attention: Treasurer,
with a copy sent via the same means to General Counsel of the Borrower at 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Telecopy Number (212)
969-1334), or at such other address for notice as any of such Persons shall
last have furnished in writing to the Person giving the notice;
(b) if to Fleet, whether individually or as Administrative
Agent, at 000 Xxxx Xxxxxx, 25th Floor, CT/MO/0250, Xxxxxxxx, Xxxxxxxxxxx
00000, (Telecopy Number (000) 000-0000), Attention: Xxxxxxxxx X. Xxxxxxx, Vice
President, Ref: Alliance Capital Management L.P., with a copy sent via the
same means to Xxxxxxxx & Xxxx LLP, 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000 (Telecopy Number: (000) 000-0000), Attention: Xxxxxxx X. Xxxxxx, Esq.,
or such other address for notice as such Person shall last have furnished in
writing to the Person giving the notice;
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(c) if to any Bank, at such Bank's address set forth on
Schedule 1 hereto, or such other address for notice as such Bank shall have
last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier
or telecopy to a responsible officer of the party to which it is directed, at
the time of the receipt thereof by such officer or the sending of such
telecopy, or when delivery (if other than by telecopy) is duly attempted and
refused, and (ii) if sent by registered or certified first-class mail, postage
prepaid, on the third Business Day following the mailing thereof.
19. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF THE ADMINISTRATIVE AGENT,
THE BANKS AND THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION 18. EACH OF THE ADMINISTRATIVE AGENT, THE BANKS AND THE
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
20. HEADINGS.
The captions in this Credit Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
21. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in
several counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, and all of which
together shall constitute one instrument. In proving this Credit Agreement it
shall not be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is sought.
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22. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except
as provided in Section 24.
23. WAIVER OF JURY TRIAL.
EACH OF THE ADMINISTRATIVE AGENT, THE BANKS AND THE BORROWER HEREBY
WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY PROCEEDING ARISING OUT OF
ANY DISPUTE IN CONNECTION WITH THIS CREDIT AGREEMENT, THE NOTES, OR ANY OF THE
OTHER LOAN DOCUMENTS, AND RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR
THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW,
EACH OF THE ADMINISTRATIVE AGENT, THE BANKS AND THE BORROWER HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY PROCEEDING REFERRED TO IN THE
PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES
OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWER (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY BANK OR THE
ADMINISTRATIVE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH BANK
OR THE ADMINISTRATIVE AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT EACH OF THE
ADMINISTRATIVE AGENT AND THE BANKS HAS BEEN INDUCED TO ENTER INTO THIS CREDIT
AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY BY, AMONG OTHER
THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
24. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Credit Agreement, any
term of this Credit Agreement, the other Loan Documents, or any other
instrument related hereto or mentioned herein may be amended with, but only
with, the written consent of the Borrower and the Majority Banks. Any consent
or approval required or permitted by this Credit Agreement to be given by the
Banks may be given, any acceleration of amounts owing under the Loan Documents
may be rescinded, and the performance or observance by the Borrower of any
terms of this Credit Agreement, the other Loan Documents, or any other
instrument related hereto or mentioned herein or the continuance of any
Default or Event of Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the
written consent of the Majority Banks. Notwithstanding the foregoing, the rate
of interest on the Notes (other than interest accruing pursuant to Section
4.10 following the effective date of any waiver by the Majority Banks of the
Default or Event of Default relating thereto), the term of the Notes, the
definition of Maturity Date, the amount of the Commitments of the Banks, and
the amount of facility fees hereunder may not be changed without the written
consent of the Borrower and the
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written consent of Banks holding one hundred percent (100%) of the outstanding
principal amount of the Notes (or, if no Notes are outstanding, Commitments
representing one hundred percent (100%) of the Total Commitment); neither this
Section 24 nor the definition of Majority Banks may be amended without the
written consent of all of the Banks; and the amount of the Administrative
Agent's fee and Section 13 may not be amended without the written consent of
the Administrative Agent. No waiver shall extend to or affect any obligation
not expressly waived or impair any right consequent thereon. No course of
dealing or delay or omission on the part of any Bank in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto. No
notice to or demand upon the Borrower shall entitle the Borrower to other or
further notice or demand in similar or other circumstances. Neither the
Administrative Agent nor any Bank has any fiduciary relationship with or
fiduciary duty to the Borrower arising out of or in connection with this
Credit Agreement or any of the other Loan Documents, and the relationship
between the Administrative Agent and the Banks, on the one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor.
25. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or
in part in any jurisdiction, then such invalidity or unenforceability shall
affect only such clause or provision, or part thereof, in such jurisdiction,
and shall not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this Credit Agreement in any
jurisdiction.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
BORROWER: ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management
Corporation, its General Partner
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: SVP and Treasurer
ADMINISTRATIVE AGENT: FLEET NATIONAL BANK
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
SYNDICATION AGENT: THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Francois Van Reepinghen
------------------------------------------
Name: Francois Van Reepinghen
Title: Senior Vice President
DOCUMENTATION AGENT: BANQUE NATIONALE DE PARIS
By: /s/ Xxxxxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxxxxx X. Xxxxx
Title: Assistant Vice President
By: /s/ Laurent Vanderzyppe
------------------------------------------
Name: Laurent Vanderzyppe
Title: Vice President
85
BANKS: FLEET NATIONAL BANK
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Francois Van Reepinghen
------------------------------------------
Name: Francois Van Reepinghen
Title: Senior Vice President
BANQUE NATIONALE DE PARIS
By: /s/ Xxxxxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxxxxx X. Xxxxx
Title: Assistant Vice President
By: /s/ Laurent Vanderzyppe
------------------------------------------
Name: Laurent Vanderzyppe
Title: Vice President
UBS AG STAMFORD BRANCH
By: /s/ Xxxxxxx Rave
------------------------------------------
Name Xxxxxxx Rave
Title: Director
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
86
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxx Xxxxxx
Title: Vice President
87
Exhibit A-1 to the
Credit Agreement
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT, dated as of _______________, 199_/200_
(this "Assumption Agreement"), among , __________________, a
[corporation/partnership/limited liability company] (the "Company"), and Fleet
National Bank, individually and as administrative agent (the "Administrative
Agent") for the Banks listed on Schedule 1 of the Credit Agreement referred to
below [**Adjust description of parties as appropriate to reflect the
requirements of Alternatives 2 and 3 in Section 2**];
W I T N E S S E T H:
WHEREAS, Alliance Capital Management L.P., a Delaware limited
partnership (the "Borrower"), the Banks, The First National Bank of Chicago,
individually and as syndication agent, Banque Nationale de Paris, individually
and as documentation agent, and the Administrative Agent have entered into
that certain Revolving Credit Agreement dated as of __________ __, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement");
WHEREAS, Section 7 of the Credit Agreement contemplates certain
circumstances in which the obligations of the Borrower under the Credit
Agreement will be assumed, on a joint and several basis with the Borrower, by
one or more corporations that are successors to the Borrower or transferees of
certain portions of the business or assets of the Borrower;
WHEREAS, [**describe circumstances giving rise to the execution of
this Agreement**] (the "Transaction"); and
WHEREAS, Section [**7.1(c), or 7.2(a), or 7.2(c)(iii)**] of the
Credit Agreement requires that, as a condition precedent of the Transaction,
the Company execute and deliver this Agreement in order to (a) become jointly
and severally liable, with the Borrower and any other corporations that have
entered into, or will in the future enter into, Assumption Agreements (any
such corporations, the "Other Obligors"), for all the obligations of the
Borrower under the Credit Agreement and the other Loan Documents and (b) agree
to be bound by all of the covenants and agreements set forth therein;
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements set forth hereinbelow, and other good and valuable
consideration, the Company, the Banks, and the Administrative Agent hereby
agree as follows:
A1-1
Section I Assumption.
10. The Company hereby assumes, jointly and severally with the
Borrower and the Other Obligors, all of the duties, liabilities and
obligations of the Borrower under the Credit Agreement, and the Company shall
be bound by, and shall perform and observe the terms and conditions of the
Credit Agreement as if it had originally executed the Credit Agreement as the
Borrower. Without limiting the generality of the foregoing, the Company,
jointly and severally with the Borrower and the Other Obligors, shall pay to
the order of the Banks or the Administrative Agent, as appropriate, all
principal, interest, and other amounts that are due and payable from time to
time under the Credit Agreement. The closing of the Transaction shall be the
sole condition precedent to the effectiveness of this assumption by the
Company. Notwithstanding the foregoing, the Company shall comply with Section
6.6.4 of the Credit Agreement only to the extent required by Government
Mandate.
11. [**Insert one of the three following alternatives, as
appropriate.**]
First Alternative
[**To be inserted for (a) transfers of assets to Restricted Subsidiaries under
Credit Agreement Section 7.1(c) provided the Borrower will survive the
transfer and (b) Reorganizations between Restricted Subsidiaries under Credit
Agreement Section 7.2(a).**]
The rights of the Borrower under the Credit Agreement, including, without
limitation, the right to request borrowings and determine the interest rates
applicable to Loans, shall continue to be exercised exclusively by the
Borrower.
Second Alternative
[**To be inserted for Reorganizations under Credit Agreement Section 7.2(c) in
which all of the business and assets of the Borrower remaining after any other
transfers to Other Obligors or others are transferred to the Company and the
Borrower does not survive, provided that, upon completion of such
Reorganization, investment management contracts, together with agreements
associated with distribution revenues and shareholder servicing fees, with
respect to at least seventy-five percent (75%) of the consolidated revenues,
less "other revenues" (as such term is used in the Borrower's consolidated
statements of income as filed with the Securities and Exchange Commission), of
the Borrower and its Consolidated Subsidiaries during the four (4) fiscal
quarters most recently ended prior to such Reorganization will, if held by the
Borrower and/or one or more of its Consolidated Subsidiaries prior to such
Reorganization, be held by the Company and/or one or more of its Consolidated
Subsidiaries. For this alternative, the Banks, the Borrower, and any other
obligors must join this Agreement.**]
Upon the effectiveness of the Transaction, the Company shall assume the rights
of the Borrower under the Credit Agreement and shall be entitled to exercise
the same subject to the terms and conditions of the Credit Agreement. Without
limiting any provisions hereof or of any other Loan Document, each Other
Obligor acknowledges that its liability under the Assumption Agreement
A1-2
to which it is party shall extend to all amounts owing under the Credit
Agreement by virtue of the Company's exercise of the rights assumed by it
hereunder.
Third Alternative
[**To be inserted in all cases other than those to which either the First
Alternative or the Second Alternative applies. For this alternative, the
Borrower and any Other Obligor must join this Agreement.**]
Upon the effectiveness of the Transaction, (a) the Commitment shall terminate
and the Banks shall be relieved of all obligations to make Loans under the
Credit Agreement, and (b) subject to clause (a) [**insert name of party to
exercise remaining rights of Borrower**] shall assume the rights of the
Borrower under the Credit Agreement and shall be entitled to exercise the same
subject to the terms and conditions of the Credit Agreement. Without limiting
any provisions hereof or of any other Loan Document, the Company and each
Other Obligor acknowledges that its liability under the Assumption Agreement
to which it is party shall extend to all amounts owing under the Credit
Agreement by virtue of the [**insert name of party to exercise remaining
rights of Borrower**]'s exercise of the rights assumed by it hereunder.
12. [**This section may be deleted if the Company is the sole obligor
in respect of the Credit Agreement.**] The obligations of the Company under
this Agreement shall be primary, absolute and unconditional (except for the
condition specified in the last sentence of paragraph 1 of this Section I),
and, without limiting the generality of the foregoing, shall not be released,
discharged, modified or otherwise affected by:
(i) any additional borrowings under the Credit Agreement,
regardless of whether the Company shall have approved any of such
borrowings or been given notice thereof;
(ii) any extension, renewal, settlement, compromise, waiver
or release in respect of the obligations of the Borrower or any Other
Obligor under any Loan Document;
(iii) any change in the legal existence, structure or
ownership of the Borrower or any Other Obligor or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the
Borrower or any Other Obligor;
(iv) the existence of any claim, set-off or other rights
that the Company may have at any time against the Administrative
Agent, any of the Banks or any other Person, whether in connection
herewith or any unrelated transaction, provided that nothing herein
shall prevent the assertion of such claim by separate suit or
compulsory counterclaim;
(v) any act, omission to act or delay of any kind by the
Borrower, the Administrative Agent, any Bank or any other Person; or
A1-3
(vi) any other event or circumstance whatsoever that might,
but for this paragraph 3, constitute a legal or equitable discharge
of the Borrower's or any Other Obligor's obligations hereunder.
13. [**This section may be deleted if the Company is to be the sole
obligor in respect of the Credit Agreement.**] The Company's obligations
hereunder shall remain in full force and effect until the principal of and
interest on the Notes, and all other amounts payable by the Borrower and any
Other Obligors under the Credit Agreement and the other Loan Documents, shall
have been paid in full. If at any time any payment under any of the Notes or
the Credit Agreement is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of the Borrower or any Other
Obligor, or otherwise, the Company's obligations hereunder with respect to
such payment shall be reinstated as though such payment had been due but not
made at the time of such rescission, restoration or return.
14. [**This section may be deleted if the Company is to be the sole
obligor in respect of the Credit Agreement.**] The Company shall not exercise
against the Borrower or any Other Obligor any rights or remedies in respect of
payments under this Agreement, whether for contribution, by way of subrogation
or otherwise, until after the full and final payment of all Obligations.
Section II. Definitions.
For the purposes of this Agreement, each capitalized term used herein
and not otherwise defined herein has the meaning assigned to that term under
the Credit Agreement.
Section III. Certain Documents.
The Company shall, as a condition precedent to the Transaction,
furnish to the Administrative Agent and each Bank the following documents,
each of which shall be reasonably satisfactory to the Administrative Agent and
each of the Banks in form and substance:
15. (a) A copy of the Company's certificate of incorporation,
certificate of limited partnership or certificate of organization or other
articles of organization duly certified as of a recent date by the secretary
of state or other appropriate official of the jurisdiction in which the
Company is organized, (b) a copy, certified by a duly authorized officer of
the Company to be true and complete on the date of this Agreement, of its
by-laws as in effect on such date, and (c) a certificate of the secretary of
state or other appropriate official of the jurisdiction in which the Company
is organized, dated as of a recent date, as to the due incorporation, legal
existence and good standing of the Company.
16. A certificate of the Company, the Borrower, and any Other
Obligors dated as of the effective date of the Transaction certifying, jointly
and severally, that (a) no Default or Event of Default has occurred or is
continuing or will exist immediately after giving effect to the Transaction,
(b) if the Transaction is subject to Section 7.2(c)(vi) of the Credit
Agreement, any diminution in the aggregate net worth of the Borrower (if it
survives the Transaction), the
A1-4
Company, any other Obligors, and their respective consolidated Subsidiaries
(after adjustment of such aggregate net worth to eliminate intercompany items
and without double counting), when compared with the Consolidated Net Worth of
the Borrower as of the date of the most recently completed fiscal quarter
immediately prior to such Reorganization, is not more than twenty percent
(20%) of such Consolidated Net Worth, and (c) the Transaction otherwise
satisfies the conditions of the Credit Agreement applicable thereto.
17. A certificate from the Company with respect to the incumbency and
signature of each of its officers (a) who is authorized to sign this Agreement
and any other document executed in connection herewith on its behalf and (b)
who will, until replaced by another officer or officers duly authorized for
that purpose, act as its representative for the purposes of signing documents
and giving notices and other communications in connection with the Credit
Agreement and any documents executed in connection therewith and the
transactions contemplated hereby and thereby. The Administrative Agent and the
Banks may conclusively rely on such certificate until the Administrative Agent
receives a notice in writing from the Company providing the names and
signatures of replacement officers.
18. An opinion of Xxxxx & Xxxx LLP, or other counsel to the Company
reasonably satisfactory to the Administrative Agent and the Banks, that
relates to (a) the Company, (b) this Agreement, (c) any other Loan Documents
to which the Company is party, and (d) any other Loan Documents to which the
Company is required to become a party in order to satisfy the applicable
conditions of the Credit Agreement giving rise to the execution and delivery
of this Agreement (the Loan Documents referred to in clauses (c) and (d), the
"Required Loan Documents") .
Section IV. Representations and Warranties
In order to induce the Administrative Agent to enter into this
Agreement, the Company represents and warrants to the Administrative Agent and
the Banks that:
19. The Company is duly organized, validly existing and in good
standing as a [corporation/limited partnership/limited liability company]
organized under the laws of the State of _______________, and has the
[corporate/partnership/limited liability company] power and authority to (a)
execute and deliver this Agreement and any Required Loan Documents and (b)
perform its obligations under, and comply with the requirements of, this
Agreement and any Required Loan Documents. The Company is duly qualified or
authorized to conduct business in all jurisdictions other than the
jurisdiction in which it is organized in which it owns or leases property, or
conducts any business so as to require such qualification, except where the
failure to be so qualified would not have a Material Effect.
20. All [corporate/partnership/limited liability company] action
necessary for the valid execution, delivery and performance by the Company of
this Agreement and any Required Loan Documents, has been duly and effectively
taken and is in full force and effect at the date of this Agreement. Each of
this Agreement and any Required Loan Documents has been duly executed and
delivered by the Company. This Agreement and such Required Loan Documents
A1-5
constitute the Company's legal, valid and binding obligations, enforceable
against the Company in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency, moratorium and other similar laws
affecting creditors' rights generally and by general principles of equity,
regardless of whether enforcement is sought in a proceeding in equity or at
law.
21. The Company has duly obtained all consents and approvals of
Government Authorities and has duly effected all notices, filings and
registrations with Government Authorities, as may be required in connection
with the execution, delivery, performance and observance of this Agreement and
any Required Loan Documents, and such consents, approvals, notices, filings
and registrations are in full force and effect at the date of this Agreement.
Except as would not have a Material Effect, the Company has duly obtained all
consents and approvals of third parties other than Government Authorities, and
has duly effected all notices to such third parties, as may be required in
connection with the execution, delivery, performance and observance of this
Agreement and any Required Loan Documents, and such consents, approvals, and
notices are in full force and effect at the date of this Agreement.
22. The execution and delivery by the Company of this Agreement and
any Required Loan Documents to be entered into by the Company concurrently
with this Agreement, and the performance and observance by the Company of this
Agreement and such Required Loan Documents will not contravene, or result in a
default or event of default under, (a) the Company's certificate of
incorporation, certificate of limited partnership or certificate of
organization (or other articles of organization) or by-laws, partnership
agreement or operating agreement, (b) any Contract to which the Company is
party or to which any of its assets are subject (except as will not be likely
to have a Material Effect), or (c) any Government Mandate applicable to the
Company or its assets.
23. The Company is in full compliance with the terms and conditions
of the Credit Agreement, and will be in full compliance with all such terms
and conditions upon the effectiveness of the Transaction.
Section V. Expenses.
The Company shall, jointly and severally with the Borrower, upon
demand, pay in the first instance, or reimburse the Administrative Agent for,
all reasonable out-of-pocket expenses of the Administrative Agent (including
the reasonable fees and disbursements of counsel to the Administrative Agent)
incurred in connection with the preparation, execution and delivery of this
Agreement and all transfer, stamp, documentary or other similar taxes, in
respect of this Agreement or any other document or instrument referred to
herein. The Administrative Agent shall deliver to the Company, to support such
expenses, true copies of unpaid invoices, receipted bills, and such other
supporting information as the Company may reasonably request. The provisions
of this Section V shall survive the termination of the Credit Agreement.
A1-6
Section VI. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS
OR CHOICE OF LAW). EACH PARTY HERETO AGREES THAT ANY SUIT FOR THE ENFORCEMENT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION 18 OF THE CREDIT AGREEMENT. EACH PARTY HERETO HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
Section VII. Counterparts; Binding Effect.
This Agreement may be executed in any number of counterparts, all of
which when taken together shall constitute but one and the same instrument.
This Agreement is binding upon the parties hereto and their respective
successors and assigns, and is intended to benefit and to be enforceable by
the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as a sealed instrument as of the day and year first above
written.
[**THE COMPANY**]
By:_____________________________________
Authorized Signatory
FLEET NATIONAL BANK
individually and as Administrative Agent
By:_____________________________________
Authorized Signatory
A1-7
[**OTHER BANKS AND CO-AGENTS**]
[**only required for
Alternative in Section 2**]
By:_____________________________________
Authorized Signatory
[**Insert signatures for the
Borrower and Other Obligors as
required for the Second and Third
Alternatives in Section 2**]
X0-0
Xxxxxxx X-0 to the
Credit Agreement
ASSUMPTION, RELEASE AND CONSENT AGREEMENT
THIS ASSUMPTION, RELEASE AND CONSENT AGREEMENT, dated as of ___, 1999
(this "Agreement"), among Alliance Capital Management L.P., a Delaware limited
partnership (together with its successors, "Alliance Holding"), Alliance
Capital Management X.X. XX, a Delaware limited partnership established on
April 6, 1999 (together with its permitted successors, "Alliance Capital"),
and Fleet National Bank, individually and as administrative agent (the
"Administrative Agent") for the Banks listed on Schedule 1 to the Credit
Agreement (as defined hereinafter) (the "Banks");
W I T N E S S E T H:
WHEREAS, Alliance Holding, the Banks, The First National Bank of
Chicago, individually and as Syndication Agent, Banque Nationale de Paris,
individually and as Documentation Agent, and the Administrative Agent have
entered into that certain Revolving Credit Agreement dated as of July ____,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"); and
WHEREAS, Alliance Holding may assign and transfer its rights and
obligations under the Loan Documents in a transaction permitted under Section
7.2 (d) of the Credit Agreement without the consent of the Banks; and
WHEREAS, on a date to be specified by Alliance Holding, Alliance
Holding will transfer substantially all of its business and assets to Alliance
Capital in accordance with the reorganization contemplated by the agreement
and plan of reorganization [to be] entered into among Alliance Holding,
Alliance Capital, Alliance Capital Management Corporation (the "General
Partner") and The Equitable Life Assurance Society of the United States (the
"Transaction"); and
WHEREAS, the parties hereto wish to provide for the assignment by
Alliance Holding to Alliance Capital of all of its rights and obligations
under the Loan Documents as hereinbelow provided;
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements set forth hereinbelow, and other good and valuable
consideration, the parties hereto hereby agree as follows:
Assumption, Release and Consent.
Alliance Holding hereby assigns, and Alliance Capital hereby assumes,
all of the duties, liabilities and obligations of Alliance Holding under the
Credit Agreement and any other Loan
A2-1
Documents, and Alliance Capital shall be bound by, and shall perform and
observe the terms and conditions of the Credit Agreement and any other Loan
Documents as if it had originally executed the Loan Documents as the Borrower
(as defined in the Credit Agreement, as further modified herein). Without
limiting the generality of the foregoing, Alliance Capital shall pay to the
order of the Banks or the Administrative Agent, as appropriate, all principal,
interest, and other amounts that are due and payable from time to time under
the Credit Agreement. The closing of the Transaction shall be the sole
condition precedent to the effectiveness of the assignment by Alliance Holding
and assumption by Alliance Capital contemplated by this Agreement.
Upon the effectiveness of the Transaction, Alliance Capital shall
assume the rights of Alliance Holding under the Credit Agreement and any other
Loan Documents and shall be entitled to exercise the same subject to the terms
and conditions of the Credit Agreement and any other Loan Documents.
Immediately upon the effectiveness of the Transaction, the
Administrative Agent, on behalf of itself and each of the Banks, the
Syndication Agent and the Documentation Agent, hereby releases Alliance
Holding from its duties, obligations and liabilities under the Credit
Agreement and any other Loan Documents, and hereby consents to the assumption
set forth in this Section I.
Definitions.
For the purposes of this Agreement, each capitalized term used herein
and not otherwise defined herein has the meaning assigned to that term under
the Credit Agreement.
For the purposes of the Credit Agreement as amended hereby and any
other Loan Documents, as of and from the effectiveness of the Transaction,
"Borrower Partnership Agreement" shall mean the Agreement of Limited
Partnership of Alliance Capital, dated as of April 6, 1999, by and among the
General Partner and those other Persons who became partners of Alliance
Capital as provided therein, as such agreement has been amended and exists at
the date of this Agreement and may be amended or modified from time to time in
compliance with the provisions of the Credit Agreement (the "Alliance Capital
Partnership Agreement"); provided, however, that the references to "Section
2.6 of the Borrower Partnership Agreement" contained in Sections 7.2(c) and
11.1(n) of the Credit Agreement shall be deemed to mean Section 2.05 of the
Alliance Capital Partnership Agreement.
For the purposes of the Credit Agreement as amended hereby and any
other Loan Documents, as of and from the effectiveness of the Transaction,
"Borrower" shall mean Alliance Capital and its permitted successors for all
purposes under the Credit Agreement and any other Loan Documents, and as to
all periods or dates preceding but excluding such date shall mean Alliance
Holding, except as set forth elsewhere herein, and except further that for
purposes of Section 6.4(d) of the Credit Agreement, from and after such date,
if any, as Alliance Capital ceases to be subject to the reporting requirements
of the Securities Exchange Act of 1934, as amended, Alliance Capital will
deliver to each of the Banks copies of all material filed with the Securities
and Exchange Commission by Alliance Holding.
A2-2
Certain Documents.
Alliance Capital shall, as a condition precedent to the effectiveness
of this Agreement, furnish to the Administrative Agent and each Bank the
following documents, each of which shall be reasonably satisfactory to the
Administrative Agent and each of the Banks in form and substance:
(a) A copy of Alliance Capital's and the General Partner's
certificate of incorporation, certificate of limited partnership or
certificate of organization or other articles of organization duly certified
as of a recent date by the Secretary of State of Delaware, (b) a copy,
certified by a duly authorized officer of such Entity to be true and complete
on the date of this Agreement, of its agreement of limited partnership or
by-laws, as the case may be, as in effect on such date, and (c) a certificate
of the Secretary of State of Delaware, dated as of a recent date, as to the
due organization, legal existence and good standing of such Entity.
A certificate of Alliance Capital dated as of the effective date of
the Transaction certifying that (a) no Default or Event of Default has
occurred or is continuing or will exist immediately after giving effect to the
Transaction and (b) the Transaction otherwise satisfies the conditions of the
Credit Agreement applicable thereto.
A certificate from the General Partner of Alliance Capital with
respect to the incumbency and signature of each of its officers (a) who is
authorized to sign this Agreement and any other document executed in
connection herewith on its behalf and (b) who will, until replaced by another
officer or officers duly authorized for that purpose, act as its
representative for the purposes of signing documents and giving notices and
other communications in connection with the Credit Agreement and any documents
executed in connection therewith and the transactions contemplated hereby and
thereby. The Administrative Agent and the Banks may conclusively rely on such
certificate until the Administrative Agent receives a notice in writing from
the General Partner of Alliance Capital providing the names and signatures of
replacement officers.
An opinion of Xxxxx & Xxxx LLP that relates to (a) Alliance Capital
and the General Partner, (b) this Agreement, (c) any other Loan Documents to
which Alliance Capital is party, and (d) any other Loan Documents to which
Alliance Capital is required to become a party in order to satisfy the
applicable conditions of the Credit Agreement giving rise to the execution and
delivery of this Agreement (the Loan Documents referred to in clauses (c) and
(d), the "Required Loan Documents").
True and correct copies of the documents relating to the Transaction
and filed with the Securities and Exchange Commission, including, without
limitation, the agreement and plan of reorganization.
Replacement Notes duly executed by Alliance Capital (such new Notes,
"Replacement Notes") in favor of the Banks in exchange for the Notes of
Alliance Holding then held by the Banks (the "Old Notes"). Each Replacement
Note shall be identical in all respects to the corresponding Old Note or Old
Notes, as the case may be, except that the obligor on such Replacement Notes
shall be Alliance Capital instead of Alliance Holding.
A2-3
Representations and Warranties.
Alliance Capital represents and warrants to the Administrative Agent
and the Banks that:
Alliance Capital and the General Partner are duly organized, validly
existing and in good standing as a limited partnership or a corporation, as
the case may be, organized under the laws of the State of Delaware, and have
the partnership or corporate power and authority, as the case may be, to (a)
execute and deliver this Agreement and any Required Loan Documents and (b)
perform their obligations under, and comply with the requirements of, this
Agreement and any Required Loan Documents. Alliance Capital and the General
Partner are duly qualified or authorized to conduct business in all
jurisdictions other than the jurisdiction in which they are organized in which
they own or lease property, or conduct any business so as to require such
qualification, except where the failure to be so qualified would not be likely
to have a Material Effect.
All partnership and corporate action necessary for the valid
execution, delivery and performance by Alliance Capital or the General
Partner, as the case may be, of this Agreement and any Required Loan
Documents, has been duly and effectively taken and is in full force and effect
at the date of this Agreement. Each of this Agreement and any Required Loan
Documents has been duly executed and delivered by Alliance Capital. This
Agreement and such Required Loan Documents constitute Alliance Capital's
legal, valid and binding obligations, enforceable against Alliance Capital in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency, moratorium and other similar laws affecting creditors'
rights generally and by general principles of equity, regardless of whether
enforcement is sought in a proceeding in equity or at law.
Except as would not have a Material Effect, Alliance Capital has duly
obtained all consents and approvals of Government Authorities and has duly
effected all notices, filings and registrations with Government Authorities,
as may be required in connection with the execution, delivery, performance and
observance of this Agreement and any Required Loan Documents, and such
consents, approvals, notices, filings and registrations are in full force and
effect at the date of this Agreement. Except as would not have a Material
Effect, Alliance Capital has duly obtained all consents and approvals of third
parties other than Government Authorities, and has duly effected all notices
to such third parties, as may be required in connection with the execution,
delivery, performance and observance of this Agreement and any Required Loan
Documents, and such consents, approvals, and notices are in full force and
effect at the date of this Agreement.
The execution and delivery by Alliance Capital of this Agreement and
any Required Loan Documents to be entered into by Alliance Capital
concurrently with this Agreement, and the performance and observance by
Alliance Capital of this Agreement and such Required Loan Documents will not
contravene, or result in a default or event of default under, (a) Alliance
Capital's certificate of limited partnership or partnership agreement, (b) any
Contract to which Alliance Capital is party or to which any of its assets are
subject (except as will not be likely to have a Material Effect), or (c) any
Government Mandate applicable to Alliance Capital or its
A2-4
assets (except as will not be likely to have a Material Effect).
Alliance Holding is in full compliance with the terms and conditions
of the Credit Agreement, and Alliance Capital will be in full compliance with
all such terms and conditions, as amended hereby, upon the effectiveness of
the Transaction.
Expenses.
Alliance Capital shall, upon demand, pay in the first instance, or
reimburse the Administrative Agent for, all reasonable out-of-pocket expenses
of the Administrative Agent (including the reasonable fees and disbursements
of outside counsel to the Administrative Agent) incurred in connection with
the preparation, execution and delivery of this Agreement and all transfer,
stamp, documentary or other similar taxes, in respect of this Agreement or any
other document or instrument referred to herein. The Administrative Agent
shall deliver to Alliance Capital, to support such expenses, true copies of
unpaid invoices, receipted bills, and such other supporting information as
Alliance Capital may reasonably request. The provisions of this Section V
shall survive the termination of the Credit Agreement.
Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS
OR CHOICE OF LAW). EACH PARTY HERETO AGREES THAT ANY SUIT FOR THE ENFORCEMENT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS
SPECIFIED [IN SECTION 18 OF THE CREDIT AGREEMENT]. EACH PARTY HERETO HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
Counterparts; Binding Effect.
This Agreement may be executed in any number of counterparts, all of
which when taken together shall constitute but one and the same instrument.
This Agreement is binding upon the parties hereto and their respective
successors and assigns, and is intended to benefit and to be enforceable by
the parties hereto and their respective successors and assigns, including in
each case the Banks, the Syndication Agent and the Documentation Agent, on
whose behalf the Administrative Agent is executing and delivering this
Agreement.
Except as expressly amended, modified or supplemented hereby, the
provisions of the Credit Agreement and the other Loan Documents are and shall
remain in full force and effect.
A2-5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as a sealed instrument as of the day and year first above
written.
ALLIANCE CAPITAL MANAGEMENT L.P.
By: _________________________________________
Alliance Capital Management Corporation,
its general partner
By: _________________________________________
Name:
Title:
ALLIANCE CAPITAL MANAGEMENT X.X. XX
By: _________________________________________
Alliance Capital Management Corporation,
its general partner
By: __________________________________________
Name:
Title:
FLEET NATIONAL BANK,
individually and as Administrative Agent on
behalf of the Syndication Agent, the
Documentation Agent and each of the Banks
By: __________________________________________
Name
Title:
A2-6
Exhibit B to the
Credit Agreement
REVOLVING CREDIT NOTE
$______________________ __________ ___, 1999
FOR VALUE RECEIVED, the undersigned ALLIANCE CAPITAL MANAGEMENT L.P.,
a Delaware limited partnership (the "Borrower"), hereby promises to pay to the
order of ____________________ (the "Bank") at the Administrative Agent's Head
Office as such term is defined in the Revolving Credit Agreement dated as of
__________ ___, 1999 (as amended and in effect from time to time, the "Credit
Agreement"), among the Borrower, Fleet National Bank, individually and as
administrative agent, The First National Bank of Chicago, individually and as
syndication agent, Banque Nationale de Paris, individually and as
documentation agent, and the Banks listed on Schedule 1 thereto:
(a) the principal amount of _________________ AND NO/100
DOLLARS ($____________) or, if less, the aggregate unpaid principal
amount of Revolving Credit Loans advanced by the Bank to the Borrower
pursuant to the Credit Agreement; and
(b) interest from the date hereof on the principal balance
from time to time outstanding through and including the respective
maturity dates of the Loans evidenced hereby at the times and rates
specified in, and in all cases in accordance with the terms of, the
Credit Agreement.
This Note evidences borrowings under and has been issued by the
Borrower in accordance with the terms of the Credit Agreement. The Bank is
entitled to the benefit of the Credit Agreement and the other Loan Documents,
and may enforce the agreements of the Borrower contained therein, and the Bank
may exercise the respective remedies provided for thereby or otherwise
available in respect thereof, all in accordance with the respective terms
thereof. All capitalized terms used in this Note and not otherwise defined
herein shall have the same meanings herein as in the Credit Agreement.
The Borrower irrevocably authorizes the Bank to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan,
or at the time of receipt of any payment of principal on this Note, an
appropriate notation on the appropriate grid attached to this Note, or the
making of such Revolving Credit Loan or receipt of such payment. The
outstanding amount of the Revolving Credit Loans set forth on the grids
attached to this Note, or the continuation of such grids, or any other similar
record, including computer records, maintained by the Bank with respect to any
Loans shall be prima facie evidence of the principal amount thereof owing and
unpaid to the Bank, but the failure to record, or any error in so recording,
any such amount on any such grid, continuation, or other record shall not
limit or otherwise affect the obligation of the Borrower hereunder or under
the Credit Agreement to make payments of principal of and interest on this
Note when due.
B-1
The Borrower has the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of
the principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more Events of Default shall occur and be continuing,
the entire unpaid principal amount of this Note and all of the unpaid interest
accrued thereon may become or be declared due and payable in the manner and
with the effect provided in the Credit Agreement.
No delay or omission on the part of the Bank in exercising any right
hereunder shall operate as a waiver of such right or of any other rights of
the Bank, nor shall any delay, omission or waiver on any one occasion be
deemed a bar or waiver of the same or any other right on any further occasion.
The Borrower and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE
BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE BROUGHT
IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN
AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION 18 OF THE CREDIT AGREEMENT. THE BORROWER HEREBY WAIVES
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT
OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
IN WITNESS WHEREOF, the undersigned has duly executed this Note as of
the day and year first above written.
ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management
Corporation, its General Partner
By:__________________________________
Name: _________________________
Title:_________________________
GRID FOR REVOLVING CREDIT LOANS
----------- ------------ -------------- ------------ -------------
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made by:
----------- ------------ -------------- ------------- -------------
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
--
---/---/-- $------------ $------------ $------------ -------------
-- -- -- --
B-3
Exhibit C to the
Credit Agreement
ALLIANCE CAPITAL MANAGEMENT L.P.
_______________ ___, 199__/200_
Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: ______________________
Re: Loan Request under the Revolving Credit Agreement dated as
of _________ __, 1999.
Ladies and Gentlemen:
Please refer to that certain Revolving Credit Agreement dated as of
___________ __, 1999 (the "Credit Agreement") among Alliance Capital
Management L.P., a Delaware limited partnership, Fleet National Bank,
individually and as administrative agent, The First National Bank of Chicago,
individually and as syndication agent, Banque Nationale de Paris, individually
and as documentation agent, and the Banks referred to therein. Capitalized
terms defined in the Credit Agreement and used in this letter without
definition shall have for purposes of this letter the meanings assigned to
them in the Credit Agreement.
Pursuant to Section 2.7 of the Credit Agreement, we hereby request
that a Revolving Credit Loan consisting of [**an Alternative Base Rate Loan in
the principal amount of $____________, and/or a Eurodollar Rate Loan in the
principal amount of $_____________ with an Interest Period of
______________**] be made on _____________ ___, 199__/200__. We understand
that this request is irrevocable and binding on us and obligates us to accept
the requested Loan on such date.
We hereby certify that (a) the aggregate outstanding principal amount
of the Revolving Credit Loans on today's date is $____________, (b) the
aggregate principal amount of the Revolving Credit Loans to be outstanding on
the Drawdown Date for the Revolving Credit Loan requested hereby (assuming
disbursement of such Loan and all other Loans requested under outstanding Loan
Requests) will be $__________, (c) we will use the proceeds of the requested
Revolving Credit Loan in accordance with the provisions of the Credit
Agreement, (d) no Default or Event of Default has occurred and is continuing
and (e) all conditions precedent to the Loan requested hereby set forth in
Section 10 of the Credit Agreement have been duly satisfied or waived.
C-1
Very truly yours,
ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management
Corporation, its General Partner
By:__________________________________
Name:_____________________________
Title:____________________________
Exhibit D to the
Credit Agreement
ALLIANCE CAPITAL MANAGEMENT L.P.
______________ ____, [19___/200__]
Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention:
Re: Confirmation of Loan Request under the Revolving
Credit Agreement dated as of __________ __, 1999
Ladies and Gentlemen:
Please refer to that certain Revolving Credit Agreement dated as of
___________ __, 1999 (the "Credit Agreement") among Alliance Capital
Management L.P., Fleet National Bank, individually and as administrative
agent, The First National Bank of Chicago, individually and as syndication
agent, Banque Nationale de Paris, individually and as documentation agent, and
the Banks referred to therein. Capitalized terms defined in the Credit
Agreement and used in this letter without definition shall have, for purposes
of this letter, the meanings assigned to them in the Credit Agreement.
Pursuant to Section 2.7 of the Credit Agreement, we hereby confirm
that a telephonic request for a Revolving Credit Loan consisting of [**an
Alternative Base Rate Loan in the principal amount of $__________, and/or a
Eurodollar Rate Loan in the principal amount of $___________ with an Interest
Period of ________________**] to be made on ____________, ____ [199__/200__]
was made by us on _____________,[199__/200__]. We understand that this request
was irrevocable and binding on us and obligated us to accept the requested
Revolving Credit Loan on such date.
We hereby certify that (a) the aggregate outstanding principal amount
of the Revolving Credit Loans on the date of the request was $___________ (b)
the aggregate principal amount of the Revolving Credit Loans to be outstanding
on the Drawdown Date for the Revolving Credit Loan requested as described
above (assuming disbursement of such Loan and all other Loans requested under
outstanding Loan Requests) will be $___________, (c) we will use the proceeds
of the requested Revolving Credit Loan in accordance with the provisions of
the Credit Agreement, (d) no Default or Event of Default has occurred and is
continuing and (e) all
D-1
conditions precedent to the Loan requested as described above that are set
forth in Section 10 of the Credit Agreement have been duly satisfied or
waived.
Very truly yours,
ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management
Corporation, its General Partner
By:__________________________________
Name:_____________________________
Title:____________________________
D-2
Exhibit E to the
Credit Agreement
ALLIANCE CAPITAL MANAGEMENT L.P.
_______________ ____,[199__/200__]
Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention:_______________________
Re: Conversion Request under the Revolving Credit Agreement dated as
of _________ __, 1999
Ladies and Gentlemen:
Please refer to that certain Revolving Credit Agreement dated as of
________ __, 1999 (the "Credit Agreement") among Alliance Capital Management
L.P., Fleet National Bank, individually and as administrative agent, The First
National Bank of Chicago, individually and as syndication agent, Banque
Nationale de Paris, individually and as documentation agent, and the Banks
referred to therein. Capitalized terms defined in the Credit Agreement and
used in this letter without definition shall have for purposes of this letter
the meanings assigned to them in the Credit Agreement.
Pursuant to Section 2.8.4 of the Credit Agreement, we hereby request
that the Revolving Credit Loan consisting of [**an Alternative Base Rate Loan
in the principal amount of $_____________, and/or a Eurodollar Rate Loan in
the principal amount of $_____________, with an Interest Period of
______________ ending on _____________ ____, [199__/200__**] currently in
effect be converted to [**an Alternative Base Rate Loan in principal amount of
$____________, or a Eurodollar Rate Loan in principal amount of $____________
with an Interest Period of _____________ **] on ______________
___,[199__/200__]. We understand that this request is irrevocable and binding
on us.
We hereby certify that (a) the aggregate outstanding principal amount
of the Revolving Credit Loans on today's date is $___________, (b) upon giving
effect to the request set forth in this letter (and any other outstanding
conversion requests under the Credit Agreement) there will be outstanding
Eurodollar Rate Loans having ______ different Interest Periods, (c) if this
letter requests conversion of an Alternative Base Rate Loan to a Eurodollar
Rate Loan or continuation of a Eurodollar Rate Loan as such, that no Default
or Event of Default has occurred and is
E-1
continuing and (d) the requests set forth in this letter are made in
accordance with the terms and conditions of the Credit Agreement.
Very truly yours,
ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management
Corporation, its General Partner
By:__________________________________
Name:_____________________________
Title:____________________________
E-2
Exhibit F to the
Credit Agreement
ALLIANCE CAPITAL MANAGEMENT L.P.
_______________ _____,[199__/200__]
Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention:_______________________
Re: Confirmation of Conversion Request under the
Revolving Credit Agreement dated as of _________ __, 1999
Ladies and Gentlemen:
Please refer to that certain Revolving Credit Agreement dated as of
_________ __, 1999 (the "Credit Agreement") among Alliance Capital Management
L.P., Fleet National Bank, individually and as administrative agent, The First
National Bank of Chicago, individually and as syndication agent, Banque
Nationale de Paris, individually and as the documentation agent, and the Banks
referred to therein. Capitalized terms defined in the Credit Agreement and
used in this letter without definition shall have for purposes of this letter
the meanings assigned to them in the Credit Agreement.
Pursuant to Section 2.8.4 of the Credit Agreement, we hereby confirm
our telephonic request that the Revolving Credit Loan consisting of [**an
Alternative Base Rate Loan in the principal amount of $__________, and/or a
Eurodollar Rate Loan in the principal amount of $__________ with an Interest
Period of ______________ ending on _______________199__/200__**] in effect at
the time of such request be converted to [**an Alternative Base Rate Loan in
principal amount of $___________ or a Eurodollar Rate Loan in principal amount
of $__________, with an Interest Period of ____________**] on ___________,
[199__/200__]. We understand that this request was irrevocable and binding on
us.
We hereby certify that (a) the aggregate outstanding principal amount
of the Revolving Credit Loans on today's date is $____________, (b) upon
giving effect to the request confirmed in this letter (and any other
outstanding conversion requests under the Credit Agreement) there will be
outstanding Eurodollar Rate Loans having __________ different Interest
Periods, (c) if this letter confirms a request for conversion of an
Alternative Base Rate Eurodollar Rate Loan or continuation of a Eurodollar
Rate Loan as such, that no Default or Event of Default has occurred
F-1
and is continuing and (d) the requests confirmed in this letter were made in
accordance with the terms and conditions of the Credit Agreement.
Very truly yours,
ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management
Corporation, its General Partner
By:__________________________________
Name:_____________________________
Title:____________________________
F-2
Exhibit G to the
Credit Agreement
[Date]
TO: Fleet National Bank (the "Administrative Agent")
FROM: Alliance Capital Management L.P. (the "Borrower")
RE: Revolving Credit Agreement (the "Credit Agreement") dated as
of __________ __, 1999 among Alliance Capital Management
L.P., Fleet National Bank, individually and as
administrative agent, The First National Bank of Chicago,
individually and as syndication agent, Banque Nationale de
Paris, individually and as documentation agent, and the
Banks referred to therein.
We hereby confirm that a telephonic request for Competitive Bid
Rate Quotes for the following proposed Competitive Bid Rate Loan(s):
Proposed Date of Borrowing:_____________________________________________
Principal Amount*/ Interest Period**/
------------------ ------------------
$
was made by us at _________ on __________, 199__/200__ pursuant to Section 2.11
of the Credit Agreement.
Such Competitive Bid Rate Quotes should offer a Competitive Bid
[Rate Margin/Absolute Rate] [or both].
We hereby certify that (a) the aggregate outstanding principal
amount of the Loans on today's date is $____________, (b) the aggregate
principal amount of the Loans to be outstanding on the Drawdown Date for the
Competitive Bid Rate Loan requested hereby (assuming disbursement of such Loan
and all other Loans requested under outstanding Loan Requests) will be
$__________, (c) we will use the proceeds of the requested Competitive Bid
Rate Loan in accordance with the provisions of the Credit Agreement, (d) no
Default or Event of Default has occurred and is continuing or would be caused
by the funding of the proposed Competitive Bid Rate Loan and (e) all
conditions precedent to the Loan requested hereby set forth in Section 10 of
the Credit Agreement have been duly satisfied or waived.
Capitalized terms used herein have the meanings assigned to them
in the Credit Agreement.
ALLIANCE CAPITAL MANAGEMENT L.P.
By:__________________________________
Alliance Capital Management
Corporation, its General Partner
By:______________________________
Name:_______________________
Title:________________________
--------
*/ Amount must be $10,000,000 or a larger multiple of $1,000,000.
**/ From and including seven (7) days to and including one hundred
eighty (180) days. The Borrower may request offers to make
Competitive Bid Rate Loans for not more than one (1) Interest
Period in a single Competitive Bid Rate Quote Request.
G-1
Exhibit H to the
Credit Agreement
[Date]
TO: [Names of Lenders]
RE: Invitation for Competitive Bid Rate Quotes to Alliance Capital
Management, L.P. (the "Borrower")
Pursuant to Section 2.11 of the Revolving Credit Agreement (the
"Credit Agreement") dated as of _________ __, 1999 among Alliance Capital
Management, L.P., Fleet National Bank, individually and as administrative
agent, The First National Bank of Chicago, individually and as syndication
agent, Banque Nationale de Paris, individually and as documentation agent, and
the Banks referred to therein. We are pleased on behalf of the Borrower to
invite you to submit Competitive Bid Rate Quotes to the Borrower for the
following proposed Competitive Bid Rate Loans(s):
Proposed Date of Borrowing:__________________________
Principal Amount Interest Period
---------------- ---------------
$
Such Competitive Bid Rate Quotes should offer a Competitive Bid [Rate
Margin/Absolute Rate].
Please respond to this invitation by no later than [1:00 P.M.*/]
[10:30 A.M.**/] (Hartford, Connecticut) on [date***/].
Capitalized terms used herein shall have the meanings assigned
thereto in the Credit Agreement.
FLEET NATIONAL BANK
By:_________________________________
Authorized Officer
--------
*/ For Eurodollar Auctions.
**/ For Absolute Rate Auctions.
***/ Third (3rd) Business Day prior to proposed date of Competitive Bid Rate
Loan if Eurodollar Auction; proposed date of Competitive Bid Rate Loan if
Absolute Rate Auction.
H-1
Exhibit I to the
Credit Agreement
Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: _____________________________
Re: Competitive Bid Rate quote[s] to Alliance Capital Management L.P. (the
"Borrower")
In response to your invitation on behalf of the Borrower dated
_____________________, we hereby make the following competitive Bid Rate
Quote[s] on the following terms:
26. Quoting Lender:_____________________________________________.
27. Person to contact at Quoting Lender:_____________________________.
28. Proposed Date of Loan:______________________________________*
29. We hereby offer to make Competitive Bid Rate Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following [rates/margins].**
Capitalized terms used herein are used as defined in the Revolving
Credit Agreement ("Credit Agreement") dated as of ___________ __, 1999 among
Alliance Capital Management L.P., Fleet National Bank, individually and as
administrative agent, The First National Bank of Chicago, individually and as
syndication agent, Banque Nationale de Paris, individually and as
documentation agent, and the Banks referred therein.
------------------
* As specified in the related Invitation.
** For a Eurodollar Auction, the margin above or below the Eurodollar Rate.
I-1
Exhibit J to the
Credit Agreement
COMPETITIVE BID RATE NOTE
_________ __, 1999
FOR VALUE RECEIVED, the undersigned ALLIANCE CAPITAL MANAGEMENT L.P.,
a Delaware limited partnership (the "Borrower"), hereby promises to pay to the
order of ____________________ (the "Bank") at the Administrative Agent's Head
Office as such term is defined in the Revolving Credit Agreement dated as of
__________ __, 1999 (as amended and in effect from time to time, the "Credit
Agreement"), among the Borrower, Fleet National Bank, individually and as
administrative agent, The First National Bank of Chicago, individually and as
syndication agent, Banque Nationale de Paris, individually and as
documentation agent, and the Banks listed on Schedule 1 thereto:
(a) the principal amount of ________________________________
AND NO/100 DOLLARS ($______________) or, if less, the aggregate
unpaid principal amount of Competitive Bid Rate Loans advanced by the
Bank to the Borrower pursuant to the Credit Agreement; and
(b) interest from the date hereof on the principal balance
from time to time outstanding through and including the respective
maturity dates of the Competitive Bid Rate Loans evidenced hereby at
the times and rates specified in, and in all cases in accordance with
the terms of, the Credit Agreement.
This Note evidences borrowings under and has been issued by the
Borrower in accordance with the terms of the Credit Agreement. The Bank is
entitled to the benefit of the Credit Agreement and the other Loan Documents,
and may enforce the agreements of the Borrower contained therein, and the Bank
may exercise the respective remedies provided for thereby or otherwise
available in respect thereof, all in accordance with the respective terms
thereof. All capitalized terms used in this Note and not otherwise defined
herein shall have the same meanings herein as in the Credit Agreement.
The Borrower irrevocably authorizes the Bank to make or cause to be
made, at or about the time of the Drawdown Date of any Competitive Bid Rate
Loan, or at the time of receipt of any payment of principal on this Note, an
appropriate notation on the appropriate grid attached to this Note, or the
making of such Competitive Bid Rate Loan or receipt of such payment. The
outstanding amount of the Competitive Bid Rate Loans set forth on the grids
attached to this Note, or the continuation of such grids, or any other similar
record, including computer records, maintained by the Bank with respect to any
Loans shall be prima facie evidence of the principal amount thereof owing and
unpaid to the Bank, but the failure to record, or any error in so recording,
any such amount on any such grid, continuation, or other record shall not
limit or otherwise affect the obligation of the Borrower hereunder or under
the Credit Agreement to make payments of principal of and interest on this
Note when due.
J-1
The Borrower has the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of
the principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more Events of Default shall occur and be continuing,
the entire unpaid principal amount of this Note and all of the unpaid interest
accrued thereon may become or be declared due and payable in the manner and
with the effect provided in the Credit Agreement.
No delay or omission on the part of the Bank in exercising any right
hereunder shall operate as a waiver of such right or of any other rights of
the Bank, nor shall any delay, omission or waiver on any one occasion be
deemed a bar or waiver of the same or any other right on any further occasion.
The Borrower and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE
BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE BROUGHT
IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN
AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION 18 OF THE CREDIT AGREEMENT. THE BORROWER HEREBY WAIVES
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT
OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
IN WITNESS WHEREOF, the undersigned has duly executed this Note as of
the day and year first above written.
ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management
Corporation, its General Partner
By:__________________________________
Name:_____________________________
Title:____________________________
J-2
GRID FOR COMPETITIVE BID RATE LOANS
----------------------- -------------------- -------------------- -------------------- -------------
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made by:
----------------------- -------------------- -------------------- -------------------- --------------
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ ----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ ----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
---/---/-- $------------ $------------ $------------ -----------
-- -- -- --
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Exhibit K to
Credit Agreement
[ALLIANCE CAPITAL MANAGEMENT L.P. LETTERHEAD]
Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: _______________________
Each-of the Banks as defined in the
Credit Agreement referred to below
Attention:
Re: Compliance Certificate under Revolving Credit Agreement dated
as of __________ __, 1999
Ladies and Gentlemen:
Please refer to that certain Revolving Credit Agreement dated as of
__________ __, 1999 (the "Credit Agreement") among Alliance Capital Management
L.P., Fleet National Bank, individually and as administrative agent, The First
National Bank of Chicago, individually and as syndication agent, Banque
Nationale de Paris, individually and as documentation agent, and the Banks
referred to therein. Capitalized terms defined in the Credit Agreement and
used in this certificate without definition shall have for purposes of this
certificate the meanings assigned to them in the Credit Agreement.
This is a certificate delivered pursuant to Section 6.4(c) of the
Credit Agreement with respect to compliance with the financial covenants as
set forth in Section 8 of the Credit Agreement. This certificate has been duly
executed by the principal financial officer, treasurer or general counsel of
the Borrower.
30. No Default. To the best of the knowledge and belief of the
undersigned, no Default or Event of Default has occurred and is continuing
under the Credit Agreement. Attached hereto as Appendix I are all relevant
calculations setting forth the Borrower's compliance with Section 8 of the
Credit Agreement as at the end of or, if required, during the [**annual or
quarterly**] period covered by the financial statements delivered herewith,
together with the reconciliation's to reflect changes, if any, in GAAP since
December 31, 1998.
31. Financial Statements. Together with this Certificate, the
Borrower is delivering to the Administrative Agent the financial statements
required pursuant to Section 6.4 of the Credit Agreement. [Also delivered
herewith is a reconciliation of the covenant calculations and the
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financial
statements of the Borrower to the extent they differ as the result of changes
in GAAP since December 31, 1998.]
IN WITNESS WHEREOF, the undersigned has signed this certificate as an
instrument under seal on this _____ day of ________________, 199__.
ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management
Corporation, its General Partner
By:____________________________________
Name:
Title:
K-2
Exhibit L to
Credit Agreement
ASSIGNMENT AND ACCEPTANCE
Dated as of _________________, 19__/20__
Reference is made to the Revolving Credit Agreement dated as of
_________ __, 1999 (as from time to time amended and in effect, the "Credit
Agreement"), by and among Alliance Capital Management L.P., a Delaware limited
partnership (the "Borrower"), Fleet National Bank, individually and as
administrative agent, The First National Bank of Chicago, individually and as
syndication agent, Banque Nationale de Paris, individually and as
documentation agent, and the Banks referred to therein. Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such
terms in the Credit Agreement.
________________________ (the "Assignor") and __________ the
("Assignee") hereby agree as follows:
32. Subject to the terms and conditions of this Assignment and
Acceptance and the applicable terms and provisions of the Credit Agreement,
including Section 17 thereof, the Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes without recourse to
the Assignor, a $_______________ interest in and to the rights, benefits,
indemnities, and obligations of the Assignor under the Credit Agreement equal
to ______________%, in respect of the Total Commitment immediately prior to
the Effective Date (as hereinafter defined).
33. The Assignor (a) represents and warrants that (i) it is legally
authorized to enter into this Assignment and Acceptance, (ii) as of the date
hereof, its Commitment is $__________, its Commitment Percentage is ________%,
and the aggregate outstanding principal balance of its Loans equals
$__________ (in each case after giving effect to the assignment contemplated
hereby but without giving effect to any contemplated assignments which have
not yet become effective), and (iii) immediately after giving effect to all
assignments which have not yet become effective, the Assignor's Commitment
Percentage will be sufficient to give effect to this Assignment and
Acceptance, (b) makes no representation or warranty, express or implied, and
assumes no responsibility with respect to any statements, warranties, or
representations made in or in connection with the Credit Agreement or any of
the other Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency, or value of the Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant thereto or
the attachment, perfection, or priority of any Lien, other than that it is the
legal and beneficial owner of the interest being assigned by it hereunder free
and clear of any Lien; (c) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower, any
other obligor, or any other Person primarily or secondarily liable in respect
of any of the Obligations, or the performance or observance by the Borrower,
any other obligor, or any other Person primarily or secondarily liable in
respect of any of the Obligations of any of its obligations under the Credit
Agreement or any of the other Loan
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Documents or any other instrument or
document delivered or executed pursuant thereto; and (d) attaches hereto the
Notes delivered to it under the Credit Agreement.
The Assignor requests that the Borrower exchange the Assignor's Notes
for new Notes payable to the Assignor and the Assignee as follows:
Amount of
Notes Payable to Competitive Bid
the Order of: Amount of Note Rate Note
Assignor $_____________ $_____________
Assignor $_____________ $_____________
34. The Assignee (a) represents and warrants that (i) it is duly and
legally authorized to enter into this Assignment and Acceptance, (ii) the
execution, delivery, and performance of this Assignment and Acceptance do not
conflict with any Government Mandate, the charter or by-laws of the Assignee,
or any Contract binding on the Assignee, (iii) all acts, conditions, and
things required to be done and performed and to have occurred prior to the
execution, delivery, and performance of this Assignment and Acceptance, and to
render the same the legal, valid, and binding obligation of the Assignee,
enforceable against it in accordance with its terms, have been done and
performed and have occurred in due and strict compliance with all applicable
Government Mandates; (b) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 6.4 (a) and (b) thereof and such other documents
and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (c) agrees that it
will, independently and without reliance upon the Assignor, the Administrative
Agent, or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement; (d) represents and
warrants that it is an Eligible Assignee; (e) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement and the other Loan Documents
as are delegated to the Administrative Agent by the terms thereof, together
with such powers as are reasonably incidental thereto; and (f) agrees that it
will perform in accordance with their terms all the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Bank.
35. The effective date for this Assignment and Acceptance shall be
_________, 19__ (the "Effective Date"). Following the execution of this
Assignment and Acceptance and if required, the consent of the Borrower hereto,
each party hereto shall deliver its duly executed counterpart hereof to the
Administrative Agent for acceptance by the Administrative Agent and recording
in the Register by the Administrative Agent. Schedule 1 to the Credit
Agreement shall thereupon be replaced as of the Effective Date by the Schedule
1 annexed hereto.
36. Upon such acceptance and recording, from and after the Effective
Date, (a) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder, and (b) the Assignor shall,
L-2
with respect to that portion of its interest under the Credit Agreement
assigned hereunder, relinquish its rights and be released from its obligations
under the Credit Agreement; provided, however, that the Assignor shall retain
its rights to be indemnified pursuant to Sections 4.6, 4.7, 4.9, 14 and 15 of
the Credit Agreement with respect to any claims or Proceedings arising prior
to the Effective Date (and without limiting any other rights of Assignee,
Assignee shall also be entitled to indemnity thereunder for such Proceedings).
37. Upon such acceptance of this Assignment and Acceptance by the
Administrative Agent and such recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the rights and
interests assigned hereby (including payments of principal, interest, fees,
and other amounts) to the Assignee. The Assignor and the Assignee shall make
any appropriate adjustments in payments for periods prior to the Effective
Date by the Administrative Agent or with respect to the making of this
assignment directly between themselves.
38. THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO TAKE EFFECT AS A
SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO CONFLICT OF LAWS).
39. This Assignment and Acceptance may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
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IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Assignment and Acceptance to be executed on its
behalf by its officer thereunto duly authorized, as of the date first above
written.
[THE ASSIGNOR]
By:__________________________________
Title:___________________________
[THE ASSIGNEE]
By:__________________________________
Title____________________________
CONSENTED TO:
ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management
Corporation, its General Partner
By_____________________________________
Title:____________________________
FLEET NATIONAL BANK
as Administrative Agent
By_____________________________________
Title:____________________________
L-4
Exhibit M to
Credit Agreement
July 21, 1999
Addressed to Each of the Parties
Listed on the Attached Schedule 1
Re: $200,000,000 Revolving Credit Agreement, dated as of July 21, 1999,
by and among Alliance Capital Management L.P., each of the Banks
which are parties thereto, Fleet National Bank, as Administrative Agent,
The First National Bank of Chicago, as Syndication Agent, and Banque
Nationale de Paris, as Documentation Agent
Ladies and Gentlemen:
We are acting as counsel for Alliance Capital Management L.P. a
Delaware limited partnership (the "Partnership"), in connection with the
Revolving Credit Agreement, dated as of July 21, 1999 (the "Agreement"),
entered into by and among the Partnership, each of the Banks which are parties
thereto, Fleet National Bank, as Administrative Agent, The First National Bank
of Chicago, as Syndication Agent, and Banque Nationale de Paris, as
Documentation Agent. This opinion is being delivered pursuant to Section 9.6
of the Agreement.
Except as otherwise herein defined, each of the terms used in this
opinion which is defined in the Agreement is used herein as defined therein.
As counsel to the Partnership, we have examined and relied, as to
factual matters (but not as to any question of law), upon originals, or copies
certified to our satisfaction, of such records, documents, certificates of the
Partnership and of public officials and other instruments, and made such other
inquiries, as, in our judgment, are necessary or appropriate to enable us to
render the opinion expressed below. We have assumed the genuineness of all
signatures and the conformity to originals of all certified copies. We have
relied on the representations and warranties set forth in the Agreement as to
factual matters (but not as to any question of law). We have also assumed that
the information contained in certificates of public officials which we have
relied upon to render the opinions expressed below, and which certificates are
dated a date reasonably near the date hereof, is still true and accurate as of
the date hereof. We have further assumed, with your permission, that each
party to the Agreement, other than the Partnership and Alliance Capital
Management Corporation, the general partner of the Partnership (the "General
Partner"), is duly organized and validly existing, has full power and
authority to enter into and perform its obligations under the Agreement, and
has duly authorized, executed and delivered the Agreement, which Agreement
constitutes each such party's legal, valid and binding contract and agreement.
Based on the foregoing, we are of the opinion that:
(i) The Partnership is a limited partnership, duly formed
and validly existing under the laws of the State of Delaware, has the
power and authority and is duly authorized to enter into and perform
the Agreement and to issue the Notes thereunder, and is duly
qualified and is in good standing as a foreign partnership in the
State of New York.
(ii) The General Partner is a corporation duly
M-1
organized, validly existing and in good standing under the laws of
the State of Delaware, has corporate power and authority and is duly
authorized to act as general partner of the Partnership and to
execute and deliver the Agreement and the Notes on behalf of the
Partnership, and is duly qualified and in good standing as a foreign
corporation in the State of New York.
(iii) The Agreement has been duly authorized, executed and
delivered by the Partnership and constitutes the legal, valid and
binding contract and agreement of the Partnership enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance,
fraudulent transfer and similar laws affecting creditors' rights
generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding in
equity or at law).
(iv) The Notes issued on the date hereof have been duly
authorized, executed and delivered by the Partnership and constitute,
and any Note issued hereafter to an assignee pursuant to Section 17
of the Agreement (assuming due execution and delivery of the Note
issued to the assignee, a legal, valid, binding and enforceable
assignment, compliance with all of the provisions of the Agreement
and no change in applicable law or circumstances, including, without
limitation, no change in the status of the assignee being in all
relevant respects the same as the status of the Banks which are
originally parties to the Agreement), will constitute, the legal,
valid and binding obligations of the Partnership enforceable in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance,
fraudulent transfer and other similar laws affecting creditors'
rights generally, and general principles of equity (regardless of
whether the application of such principles is considered in a
proceeding in equity or at law).
(v) No approval or consent on the part of, or filing with, any
Federal or Delaware or New York State governmental body is necessary
in connection with the execution, delivery and performance of the
Agreement or the Notes (it being understood that no opinion is
expressed with respect to compliance with any Federal or State
securities laws).
(vi) The execution, delivery and performance by the Partnership
of the Agreement and the Notes do not conflict with or result in any
breach of any of the provisions of, or constitute a default under,
(a) the Agreement of Limited Partnership (as Amended and Restated),
as amended through the date hereof, or the Certificate of Limited
Partnership of the Partnership, (b) the Certificate of Incorporation
or By-laws of the General Partner, (c) to our knowledge, without
having undertaken any investigation for purposes of this opinion, any
other agreement to which the Partnership is a party, except where the
conflict, breach or default would not be likely to have a
M-2
Material Effect, or (d) any Federal or Delaware or New York State law
or regulation applicable to the Partnership, the General Partner or
their respective property.
( vii) The Partnership is registered as an investment adviser
under the Investment Advisers Act of 1940, as amended. Alliance Fund
Distributors, Inc. is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended, and is a member of the
National Association of Securities Dealers, Inc. The Partnership is
not a "holding company" or a "subsidiary company" of a "holding
company" as those terms are defined in the Public Utility Holding
Company Act of 1935, as amended. The Partnership is not an
"investment company", as that term is defined in the Investment
Company Act of 1940, as amended.
(viii) There is no proceeding pending or (without our having
undertaken any investigation for purposes of this opinion), to our
knowledge, threatened against the Partnership or the General Partner
that questions the validity of (a) the Agreement or the Notes, or (b)
any Permits of the Partnership or its Subsidiaries or any 12b-1 Fee
plan or arrangement which is likely to have a Material Effect.
We are members of the bar of the State of New York. This opinion is
limited to the laws of the State of New York, the Delaware Revised Uniform
Limited Partnership Act, the General Corporation Law of the State of Delaware
and the Federal laws of the United States of America.
This opinion is given only as of its date, and we have no obligation
to notify you of the effect of any change in law or circumstances which may
occur after the date hereof.
This opinion is addressed to you in connection with the closing under
the Agreement and may not be relied upon by you for any other purpose or
furnished to or relied upon by any other person for any purpose (other than
being (i) furnished to your regulators, auditors and legal counsel in
connection with the closing under the Agreement and (ii) furnished to and
relied upon by a subsequent assignee of the Agreement and a Note solely for
the purpose of such assignment, and subject in any case to the immediately
preceding paragraph and to the parenthetical assumptions in the paragraph
numbered 4 above) without our prior written consent.
Very truly yours,
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SCHEDULE 1
Fleet National Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
XX-XX-0000
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxxxxx
Facsimile Number: (000) 000-0000
The First National Bank of Chicago
000 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Facsimile Number: (000) 000-0000
Banque Nationale de Paris
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Laurent Vanderzyppe
Facsimile Number: (000) 000-0000
UBS AG Stamford Branch
000 Xxxxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Facsimile Number: (000) 000-0000
Societe Generale, New York Branch
1221 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Facsimile Number: (000) 000-0000
Credit Suisse First Xxxxxx
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn. Xxxxxx Xxxxxx
Facsimile Number: (000) 000-0000
M-4
